The Indonesian Supreme Court’s ground-breaking decision to overturn the death sentences on three of the so-called “Bali Nine” heroin smugglers is a remarkable twist in the sometimes convoluted Indonesian legal process.

The circumstances that allowed the Supreme Court to spare Matthew Norman, Si Yi Chen and Tan Duc Thanh Nguyen from the firing squad may not be announced until next week. And given the sometimes convoluted logic of Indonesian courts, it may not be absolutely clear even then.

For example, drug use can be argued to militate against the penalty for drug selling. So, too, having heroin in one’s possession in a hotel room might be less critical than attempting to pass it through customs.

But the two main motivating factors in recent Indonesian legal history have been political or military influence and, more commonly, money.

Speculation about whether this decision reflects the warm relationship between Australia’s Prime Minister, Kevin Rudd, and Indonesia’s President Susilo Bambang Yudhoyono is unlikely, given that it would constitute a gross breach of the separation of powers that both hold dearly.

But the Indonesian legal system is not appreciably less corrupt than in the recent past, then identified as the most corrupt institution in the country. Money very often speaks more eloquently to judges than a lawyers gifted argument.

And the decision to spare at least three from the firing squad means they will now live to seek, at some future point, a presidential pardon from their commuted life sentences.

And it now opens the possibility of a similar appeal by three others of the Bali Nine, Scott Rush, Andrew Chan and Myuran Sukumaran, still on death row.

Precedence is likely to constitute only part of their expected appeal.

Associate Professor Damien Kingsbury is Associate Head (Research) of the School of International and Political Studies at Deakin University, and is author of The Politics of Indonesia, 3rd ed, 2005, Oxford UP.

Peter Fray

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