Prof Tim Lindsey: Renewed hope for Bali Nine members on death row?

Death row Bali Nine members will file reapplication for consideration of their good behaviour as one of their last legal options, says Indonesian law expert Tim Lindsey.

View the video recording of the interview here.

Australian Broadcasting Corporation
Broadcast: 22/01/2015
Reporter: Leigh Sales


LEIGH SALES, PRESENTER: Two Australian men now face impending death by firing squad in Indonesia.

Today, the Indonesian President rejected Bali nine ringleader Andrew Chan's appeal for clemency, meaning he joins Myuran Sukumaran, who had his appeal knocked back earlier this month.

In 2005, the men were caught trying to smuggle heroin from Bali to Australia.

Their lawyers are desperately looking for another avenue of appeal, but it's a grim situation.

I'm joined now by Indonesian law expert, Professor Tim Lindsey.

Professor Lindsey, with this decision, have the two Australian men exhausted all of their legal options?

TIM LINDSEY, UNIVERSITY OF MELBOURNE: Not quite. There are two processes. One is a judicial process, which culminates in what's called a reconsideration by the Supreme Court, reopening their case. That occurred some time ago. Once that's complete, the separate process, which is an application to the President for clemency, follows. That's now been completed. In both Myuran and Andrew's cases, it's been rejected. However, their lawyers are proposing to launch a second application to reopen the case to the Supreme Court. That's unusual. In other words, they're taking it from the clemency, before the President, back to the Supreme Court.

LEIGH SALES: Has that ever worked in the past?

TIM LINDSEY: Well, there's a controversy about this. The Constitutional Court has said that you may bring - there's no limit on the number of reconsiderations or reopenings of cases that are permitted. The Supreme Court, which decides these reconsideration applications, has said you may only bring one. There's a dispute between the two courts at the moment. There've been attempts to bring them together to work out a resolution. It hasn't been successful. So as it stands, the Constitutional Court says this application is acceptable and the Supreme Court says it's not.

LEIGH SALES: The Australian Prime Minister Tony Abbott has written to the Indonesian President asking for mercy to be shown to the two men. If we look to the past, is there any evidence that this has worked previously? I assume other world leaders would've made similar approaches on behalf of their nationals.

TIM LINDSEY: Well not with President Widodo. However, his predecessor, Susilo Bambang Yudhoyono, said on at least five occasions that he would never exercise his power of clemency in favour of a drugs offender. However, after time had passed, he did in fact do that, including granting a remission of five years to Schapelle Corby. So, whilst it seems very unlikely that President Widodo would be persuaded to change his position, seeing he has formally rejected the clemency applications, passing of time might change that, as it did in the case of Susilo Bambang Yudhoyono.

But, there is a further controversy involved here that relates to another conflict between those two courts that will be absolutely critical to Sukumaran and Chan's chances of success. The Constitutional Court, when it upheld the death penalty as valid a few years ago, at the same time said, however, that any drugs offender who spent 10 years on death row, if they can show rehabilitation, should have their sentence - and the word used was "should" - have their sentence reduced to a term of imprisonment rather than execution. Now, the former Constitutional Court Chief Justice, Professor Jimly Asshiddiqie, who was involved in that case, has come out and said - complaining that the Government is ignoring what the Constitutional Court said in that case. So the lawyers for Sukumaran and Chan will be arguing before the Supreme Court that it too should pay attention to what the Constitutional Court has said.

LEIGH SALES: If the Indonesian Government insists on executing them, how soon is that likely to happen?

TIM LINDSEY: It's really very hard to say. There are a number of offenders on death row who are awaiting execution. Death row in Indonesia has for some time been somewhat bottlenecked because under former President Yudhoyono, an informal moratorium on executions was declared after the execution of the Bali Bombers, that lasted from about 2008 through to 2013. Now, that moratorium was abandoned and executions began again in 2013, with some four or so executions and we've just had another five last weekend. But the moratorium means there are large numbers. So, if they are to take this in order of conviction, then you would think that there will be some time before Sukumaran and Chan face execution. But there is no formal protocol in these matters. It's very hard to say exactly what will happen.

One ray of hope is that while their matter is before the courts; that is, this second reconsideration application is before the Supreme Court, the authorities have said they would likely not proceed with the execution. So this second application, which is pointing out that the Indonesian authorities have ignored the Constitutional Court's recommendation that good behaviour should result in remission, or at least remission of the death penalty, that will likely buy them time.

LEIGH SALES: Professor Tim Lindsey, thank you very much for your time.

TIM LINDSEY: Thanks, Leigh.