The Bali Nine pair's execution may be delayed after a fellow inmate was granted an appeal.
Death row ... Andrew Chan and Myuran Sukumaran are awaiting execution in Indonesia. Picture: AFP Source: AFP
ANDREW Chan, Myuran Sukumaran and others facing execution in Indonesia could still launch multiple legal actions to delay or prevent their executions, says an Australian legal expert based in Hong Kong.
Dr Daniel Pascoe, from the School of Law at the City University of Hong Kong, has also flagged the possibility that Indonesia, which argues fiercely for its sovereign right to carry out the death penalty, may be in breach of international treaties.
Dr Pascoe has written a paper outlining grounds for new legal challenges to save the death-row prisoners, in addition to the action that is currently afoot in the State Administrative Court of Jakarta.
Final hope ... Bali Nine duo Andrew Chan and Myuran Sukumaran could launch multiple legal actions. Picture: AP Source: Supplied
That action, to be heard today, argues that President Joko Widodo did not give proper consideration when in January he wholesale denied clemency to 64 death-row drug runners, including Chan and Sukumaran.
The Australians' legal team in Indonesia, led by Todung Mulya Lubis, says President Widodo showed a poor sense of justice and procedural unfairness in hastily dismissing all the clemency appeals.
Dr Pascoe, who has written extensively on death penalty law in South-East Asia, goes further.
He sees grounds for an international challenge, given that in 2006 Indonesia became a signatory to the UN's International Covenant on Civil and Political Rights, which states that anyone "sentenced to death shall have the right to seek pardon or commutation of the sentence".
He said that President Widodo's blanket rejections of clemency without considering each prisoner's individual circumstances "results in a violation of Indonesia's international obligations".
Nightmare ... Andrew Chan's mother, Helen, after visiting her son at Nusakambangan Island. Picture: Adam Taylor Source: News Corp Australia
Dr Pascoe notes that a number of cases relating to the death penalty — including cases taken on behalf of members of the Bali Nine — and challenges even to the method of execution itself have been heard and failed.
But he argues there are several possible Constitutional Court actions that could drag out the cases, potentially for years.
One is that most prisoners spend long years on death-row, which could go against the Constitution's Articles 28G (2) and 28H (1), which set out the right "to be free from torture of inhuman or degrading treatment" and "the right to physical and mental wellbeing".
One problem with this action is that if the Constitutional Court agreed, it would not help the person appealing the case, because the ruling would apply from the date of the decision.
This means individuals have been reluctant to take this legal course, because they would not benefit from it.
But Dr Pascoe argues such a case, which would presumably see international witnesses brought to testify about the mental anguish of being on death-row, would see "heavy moral and political pressure" falling on the President to grant clemency.
Heartbreaking ... Myuran Sukumaran's sister Brintha and mother Raji Sukumaran at Nusakambangan Island. Picture: Adam Taylor Source: News Corp Australia
Another potential challenge arises from 2010 amendments designed to streamline the clemency process. The amendments mandate a strict one-year time limit to apply for clemency after the legal process has exhausted.
He says this could potentially be challenged in the Constitutional Court by arguing that the one-year limit "inhibits the ability of a prisoner to make an effective petition (to the President)".
This could be challenged on the basis of Article 28A in the Indonesian Constitution, which sets out the "Right to Life and to Defend Life and Existence".
Dr Pascoe cites numerous international treaties to which Indonesia is a signatory, which safeguard the rights of those facing execution.
A final ground for challenge relates to the Peninjaun Kembali, or PK, the extraordinary judicial review by the Supreme Court, which every prisoner is entitled to apply for after being sentenced to death.
Engaged ... Andrew Chan's fiance, Febyanti, at Nusakambangan Island yesterday. Picture: Adam Taylor Source: News Corp Australia
The nature of the PK has changed after the Constitutional Court in 2014 struck out a law limiting a person to only one PK. Prisoners have also used the hearings to present arguments about rehabilitation.
"The ability to file more than one extraordinary case … if the requisite grounds can be found, has the potential to delay execution even further, allowing rehabilitative and political grounds for clemency more time to develop," writes Dr Pascoe.
All this lends some hope to the two Australians and the others who have been listed for the firing squad.
Even if today's hearing fails, expect to see new legal efforts made along these lines.
Indonesia has been inconsistent on the entire execution process and it remains to be seen whether it will tolerate new cases.
All that can be relied on are the words of Attorney-General HM Prasetyo, who said last Friday: "We are waiting for all the legal action (to conclude) because we don't want any trouble afterwards."
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