While Australia’s attention is focused on the Labor Party’s death penalty flip-flop, Indonesia may also be shifting ground on the death penalty. Despite having executed three Catholic men in Sulawesi last September for leading religiously inspired murder, and regularly executing drug runners, there is now some doubt as to whether the death penalty will be applied to six of the Australian “Bali Nine” drug couriers now on death row.

The doubt was raised by Indonesia’s attorney-general, Hendarman Supandi, pending a ruling on an appeal by the Bali Nine to Indonesia’s Constitutional Court. In part, the Indonesian Attorney-General’s ambivalence on the death penalty reflects the power of the Constitutional Court to interpret the constitution in ways that may potentially over-ride conventional law, in this case concerning the duty of the state to protect life.

But, importantly, the Constitutional Court has also handed down decisions that reflect an open interpretation of the constitution, itself short and ambiguous, in ways that reflect political or religious interests.

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In this case, while the constitutional “protection of life” qualification draws a long legal bow, a finding that over-rode the death penalty for the Bali Nine could be equally applied to the three convicted 2002 Bali Bombers.

Such an outcome would appeal to Indonesia’s small but influential Islamist community, as well as reflecting the make-up of the nine person Constitutional Court. Five of the court’s nine judges are religious conservatives locally trained in Islamic law, including the chief judge. In a country noted for its judicial weakness, only two Constitutional Court members have international legal training.

One issue which arises is that of moral equivalence; that carrying heroin is as reprehensible as exploding bombs that directly killed 2002 people and injured many more. But at least as importantly, if the Constitutional Court over-rules Indonesia’s use of the death penalty, both the Bali Nine and the Bali Bombers would have the possibility of reduced jail terms under clemency provisions given to numerous long-serving prisoners at the end of each year’s Islamic holy month of Ramadan.

Depending on the Constitutional Court’s decision, Labor leader Kevin Rudd’s desire, that rather than be executed the Bali Bombers “rot in jail”, might end up an unfulfilled wish.