Jakarta: The Indonesian lawyer for the Bali Nine members on death row believes "serious mistakes" were made by the judges who conducted the first judicial review into their case in 2010.
Todung Mulya Lubis said he would file a second judicial review into Andrew Chan and Myuran Sukumaran's cases this week despite the Supreme Court stating only one is admissible.
"I do believe there has been a misapplication of the law, there's been serious mistakes by previous judges," Mr Mulya told reporters. The fact Chan and Sukumaran had transformed into far better people during their almost 10 years in Kerobokan prison in Bali should have been taken into consideration but was not, he said.
"We believe judges in the first PK (judicial review) did not go to all evidence and all rules and regulations," Mr Mulya said. "There is no one single justice system that is immune from mistakes."
However Tony Spontana, a spokesman for the Attorney-General, said the application for a judicial review should not be accepted by the Denpasar District Court.
Mr Spontana said a meeting at the justice ministry office on January 9 had agreed that a judicial review could only be heard once.
"Once you have the result of a clemency plea there are no more legal avenues," Mr Spontana said.
"A clemency plea means you admit guilt and are asking for a pardon. We consider clemency as final."
He said once a clemency plea has been rejected the convicts must, by law, be executed.
There were 11 people whose clemency pleas had been rejected, eight of whom were on death row for narcotics crimes and three for other crimes.
Of the eight condemned for narcotics crimes, seven were foreigners, including Chan and Sukumaran, a person from Ghana, a person from France and a person from Brazil.
In 2007, the Constitutional Court recommended that prisoners who had been on death row for 10 years and had shown reform and rehabilitation should have their sentences commuted to imprisonment. Mr Mulya said this would form part of the legal argument in the second judicial review.
The legal team would also point to the fact the Bali Nine were attempting to smuggle more than eight kilograms of heroin out of - rather than into - Indonesia.
In a statement, the legal team for Chan and Sukumaran said Indonesian President Joko Widodo should have conducted an assessment of the changes in the condemned men since their 2005 arrest.
"The president has disregarded . . . that for nearly 10 years since undertaking rehabilitation at the Kerobokan Bali correctional facility, both Myuran and Andrew have proven that they could be transformed into far better persons and have even inspired fellow inmates."
He said this was evidenced by the former governor of Kerobokan prison, Siswanto, who provided testimony during the hearing of the first judicial review in 2010.
At the time, Mr Siswanto said: "The persons in question during their time at the correctional facility have shown good behaviour. If the death penalties imposed . . . are ever executed, I personally feel that it would be a great pity. Personally we cannot go against it, but instinctively and spiritually I would ask: Why can't they be pardoned? Can't the country forgive them?"
Mr Mulya stressed he was not condoning drug trafficking but was merely opposed to the death penalty. "When we filed our first case review we did not ask for acquittal, we asked for 20 years' imprisonment," he said. "Of course the judges will probably commute to life sentence. That's OK as long as it's not the death penalty."
Mr Mulya was hopeful the second judicial review would be admitted despite the legal ambiguity around whether it was permitted. The Constitutional Court, which is at odds with the Supreme Court, has stated that multiple judicial reviews are permissible provided there is new evidence.
Mr Mulya said it was up to the judges whether the second judicial review would be admitted: "I keep my fingers crossed all the time. I cannot tell you what is going to happen but I hope. We still have hope, that is what I am saying."
The legal team has asked for the case review to be registered at Kerobokan prison rather than the Denpasar district court, as security would be difficult if Sukumaran and Chan had to appear in court.
