THE IMPORTANCE OF BILATERAL AGREEMENT ON MCN FOR

INDONESIA: TUTI TURSILAWATI DEATH PENALTY

Yordan Gunawana and Zulfiani Ayu Astutikb

a
Lecturer of Law and Director of Office of International Affairs (OIA)
Universitas Muhammadiyah Yogyakarta, Jl. Brawijaya, Kasihan, Bantul, Yogyakarta, 55183
Phone Number: +625328096673
e-mail: yordangunawan@umy.ac.id
b
Student of International Program for Law and Sharia
Universitas Muhammadiyah Yogyakarta, Jl. Brawijaya, Kasihan, Bantul, Yogyakarta, 55183
Phone Number: +6281235326304
e-mail: zulfianiayuastutik@yahoo.com

ABSTRACT

The development of globalization causes the high rate of migration people from one
country to another country. They come for many activities that might cause problem for
them in the receiving countries that make them arrested and detention. Facing this
problem, many countries establish consular relation by ratified the Vienna Convention
on Consular Relations 1963. Tuti Tursilawati’s execution without notification becomes
one of the crucial issues in this matter. Having regard to The Vienna Convention on
Diplomatic Relations 1961 and The Vienna Convention on Consular Relations 1963,
both provides specific rights for all foreign arrests and prisoners and also duties of the
Consul. For instance, Tuti Tursilawati’s case, the fact that Saudi Arabia government
not give notification to the Indonesia government about the execution of Tuti
Tursilawati is one of the violations of principle and existing treaty which regulate on
protection for all persons from being accused. By using normative legal research
method and statutory approach, the research aims to outline the importance of bilateral
agreement on mandatory consular notification in dealing with special reference of Tuti
Tursilawati case.

Keywords: Execution, Without Notification, Consular Relations and Consular

Notifications and Tuti Tursilawati Case.

INTRODUCTION

Every day, people are executed and sentenced to death by the state as a punishment for a
variety of crimes, such as drug-related offenses, terrorism-related acts, and murder.1 Some
countries use the death penalty against people with mental and intellectual disabilities. It is
discussed a lot in every platform, starting from a national level like in the government
institutions, journalism, and the international world and also in society.
Iran, Saudi Arabia, and Iraq were listed as the three highest countries which held
executions.2 In general, these three countries accounted for 84 percent of all executions in the
world. Iran became the top with 507 people sentenced to death executed, with most of them

1
Amnesty International, 2016, Out of Sight, Out of Mind Executive Summary, taken from
https://www.amnesty.ca/outofsight accessed on January 10th, 2019 at 7 pm.
2
Ibid.
being convicts of drug cases and convicts of drug cases experienced 264 executions in the
Middle East and North Africa.3
While in Saudi Arabia, 40 percent of the death sentences were handed down to suspects
with similar cases. According to Amnesty International researcher Oluwatosin Popoola, the
death penalty carried out in the Middle East and North Africa does not meet international
standards and is classified as arbitrary.4
There are a lot of cases about the death penalty, which involved many people. According to
Migrant Care records, 72% of migrant workers who face the death penalty are women. The
data of the Ministry of Foreign Affairs in 2011- 2017 collected 188 cases of Indonesian citizens
threatened with the death penalty in the process of handling, and 392 instances completed with
a free sentence.5
Again, the Government of Saudi Arabia executes Indonesian Workers (TKI). The migrant
worker was named Tuti Tursilawati from Majalengka West Java who was sentenced to death,
on Monday, October 29th, 2018 in Thaif.6 Tuti Tursilawati was arrested by the Saudi Police on
charges of murdering Suud Mulhaq Al-Utaibi, father of her boss. She is known to have worked
for eight months with the remaining salary not paid for six months.7
After killing the victim, Tuti fled to Makkah carrying jewelry and money.8 However, on the
way to escape to Makkah, she raped nine Saudi youth and took all of his stolen goods. The
nine young men were arrested and have been punished by Saudi legal provisions. 9 During the
investigation process, Tuti Tursilawati admitted that she had killed her father boss because of
frequent sexual harassment.
Protecting citizens who overcome problems abroad is one of the country's obligations.
Meeting these special obligations is not an easy task for the State. Therefore, all countries must
prioritize this task. Including Indonesia as one of the countries, which has many citizens who
live and work abroad. On Preamble of the 1945 and Article 19 (b) Law No. 37 of 1999
concerning Indonesian Foreign Relations said that the State has the responsibility to protect the
honor and property of Indonesian citizens living abroad.10
Because of it, there are so many countries establish a consular relation with another country
around the world.11 In dealing with this problem, most countries refer to existing international
conventions such as the Vienna Convention on Consular Relation 1963 on Diplomatic
Relations and the Vienna Convention on Consular Relations 1963 on Consular Relations

3
Amnesty International, 2017, Indonesia: At Least Ten Facing Imminent Execution, taken from
https://www.amnesty.org/en/documents/asa21/1124/2015/en/ accessed on January 10th, 2019 at 8 pm.
4
Ibid.
5
Dylan Aprialdo Rachman, 2018, Secara Global Tren Eksekusi Mati Tahun 2017 Mengalami Penurunan, taken
from https://nasional.kompas.com/read/2018/04/13/08033781/secara-global-tren-eksekusi-mati-tahun-2017-
mengalami-penurunan accessed on January 12th, 2019 at 9 pm.
6
Pandasurya Wijaya, 2018, Kronologi TKI Tuti Tursilawati Dieksekusi Mati, taken from
https://www.liputan6.com/news/read/3681393/kronologi-tki-tuti-tursilawati-dieksekusi-mati accessed on
February 13th, 2019 at 2 am.
7
Konradus Epa, 2018, Saudi Arabia executes Indonesian migrant worker, taken from
https://www.ucanews.com/news/saudi-arabia-executes-indonesian-migrant-worker/83761 accessed on
February 13th, 2019 at 3:24 am.
8
Sri Juliati, 2018, Kronologi Kasus TKI Tuti Tursilawati yang Dieksekusi Mati di Arab Saudi Tanpa
Pemberitahuan ke RI, taken from http://www.tribunnews.com/nasional/2018/10/30/kronologi-kasus-tki-tuti-
tursilawati-yang-dieksekusi-mati-di-arab-saudi-tanpa-pemberitahuan-ke-ri accessed on February 13th, 2019 at
3 am.
9
Friski Riana, 2018, Kronologi Kasus TKI Tuti Tursilawati hingga Dieksekusi Mati, taken from
https://nasional.tempo.co/read/1141430/kronologi-kasus-tki-tuti-tursilawati-hingga-dieksekusi-mati accessed
on February 13th, 2019 at 2:30 am.
10
The preamble of 1945 Constitution and Article 19 (b) Law No. 37 of 1999 on Indonesian Foreign Relations.
11
B. Sen, 1979, A Diplomat’s Handbook of International Law and Practice, Martinus Njhoff Publishers,
London, p. 227-244.
(VCCR) ratified by Indonesia in Law Number 1 of 1983.12 In line with the previous
background, it is interesting to evaluate the importance of bilateral agreement on mandatory
consular notification for Indonesia in dealing with Tuti Tursilawati death penalty.

1. RESEARCH METHOD
The type of this research is a normative legal research method.13 This research uses
secondary data and normative methods combined to case and statute approach in analyzing the
issue of bilateral agreement on mandatory consular notification. The statute approach is
conducted by highlighting some regulations that related to the issues while the case approach
is conducted by reviewing the case that related to the issues.14
The author collected the data from the library, focusing on a reading and analysis of the
primary and secondary materials (such as legal dictionaries, textbooks, journal articles, case
digests, and legal encyclopedias).15Source of data in this research were collected by secondary
data method. It is a method of research to collect data from the library research or literature
studey. The data are, namely:
a. Primary data is the related legislations, namely: the Vienna Convention on Consular
Relations 1963, and the Vienna Convention on Diplomatic Relations 1961.
b. Secondary data are books, scientific journals, news, and related articles on the topic.
c. Tertiary data are data that supports the primary and secondary datasuch as dictionary,
encyclopedia and trusted sites internets, etc.

2. DISCUSSION

2.1 Mandatory Consular Notification in the Diplomatic and Consular Relations within
the State
Consular relations between sovereign states have existed for centuries.16 Before the
adoption of the Vienna Convention on Consular Relations 1963, the rules governing consular
relations derived largely from customary practices developed over time and through a series of
bilateral consular conventions.17 The duty and the right of Consuls to protect their nationals
abroad have been recognized by U.S. Law for almost 200 years.18
In the 1950s, the international community recognized the need to codify the existing rules
and practices governing consular relations. Hence, the General Assembly of the United Nations
tasked the International Law Commission to draft a multilateral convention to bring more
uniformity to the law of consular relations.19 The Vienna Convention on Consular Relations

12
Husin Sukanda, Op.Cit., p. 70.
13
Soerjono Soekanto & Sri Mamudji, 2007, Penelitian Hukum Normatif, Suatu Tinjauan Singkat, Jakarta,
Rajawali, p. 12.
14
Peter Mahmud Marzuki, 2011, Penelitian Hukum, Jakarta, Kencana Prenada Media Group, p. 24.
15
Mike McConville & Wing Hong Chui, 2012, Research Methods for Law, Edinburgh, Edinburgh University
Press, p. 47.
16
United Nations Conference on Consular Relations, 1963, Summary records of the first plenary meeting, U.N.
Doc. A/CONF.25/16 (Mar. 4, 1963) (Statement by President Stephen Verosta). For a description of the
historical development of consular relations, see Jaroslav Zourek, Special Rapporteur, 1957, Consular
Intercourse and Immunities, Report of the Special Rapporteur, taken from
http://legal.un.org/ilc/guide/9_2.shtml, accessed on May 12th , 2019 at 8 pm.
17
Ibid.
18
“To watch over the rights and interests of their subjects ... is the great object for which Consuls are deputed
by their sovereigns . . . .” The Bello Corrunes, 19 U.S. 152, 168 (1821); “Consuls shall, if the local authority
arrest or prosecutes . . . take the necessary steps to have the [nationals] so arrested treated with humanity,
defended and tried impartially.” See., Mali v. Keeper of the Common Jail, 1887, Wildenhus’s Case, taken
from https://supreme.justia.com/cases/federal/us/120/1/, accessed May 12th, 2019 at 9 pm.
19
United Nations Conference on Consular Relations, Op. Cit.
1963 resulted from that process. Its final text was concluded and opened for signature in 1963,
but it did not enter into force until 1967.20
As known in the previous discussion that the task of protection is more carried out in
consular functions with the legal basis of the Vienna Convention on Consular Relations 1963.21
The Convention on Consular Relations 1963 also gives freedom to the state to form agreements
related to diplomatic protection for its citizens.22 At first, the protection of citizens was carried
out with consular notices as stipulated in Article 36 of the Vienna Convention on Consular
Relations 1963.23
Nevertheless, many countries violated the provisions of this article, which ultimately
formed a more specific agreement. The country applies its national laws to foreigners without
giving notifications to consular representatives in their countries. This kind of thing indeed has
injured the rights of foreign citizens in the form of assistance, assistance from translators, and
so forth. Mandatory Consular Notification was first initiated by the United States of America.24
However, the US was proven to have repeatedly violated Article 36 of the Vienna
Convention on Consular Relations 1963 against foreigners who committed crimes in their
territory. The violation occurred even though the United States had ratified the Vienna
Convention on Consular Relations in 1963 in 1969.25 The violations of the United States will
be described in the following cases:

a. The case of La Grand (the United States v. Germany)

In the case of La Grand which occurred in 1986, the United States sentenced Karl La
Grand and Walter La Grand, two German citizens who were charged with the murder of
bank officers and attempted robbery in the state of Arizona. The following year, the two La
Grand brothers were found guilty and sentenced to death. Germany then tried to reopen the
case and settle it through diplomatic channels but was rejected by the United States. In 1999
the United States carried out the execution of Karl La Grand. The day after the execution
was carried out, Germany submitted a motion for temporary action to the International Court
of Justice (ICJ). The day after the submission of the motion, ICJ called on the United States
to postpone the execution of Walter La Grand until there was a further verdict. Germany
filed a lawsuit against the United States in the argument that the United States had failed to
notify the German government by Article 36 of The Vienna Convention on Consular
Relations 1963.26

b. Breard Case (the United States v. Paraguay)

In the case of Breard which occurred in 1992, the United States sentenced Angel
Francisco Breard, a citizen of Paraguay to death for alleged murder and attempted rape of
US citizens Ruth Dickie. Virginia Police found Angel Breard's passport, but the US
government advised the court to hide the discovery of the passport. Also, the United States

20
United Nations Treaty Collection, Op. Cit.
21
U.S Supreme Court, 2007, “Medellin v. Texas”, Cornell Law Journal, p. 95, taken from
https://www.law.cornell.edu/supremecourt/text/552/491, accessed on March 23th, 2019 at 6 pm.
22
Widodo, Op.Cit., p. 60.
23
John B. Quigley, Op.Cit., p. 7.
24
Amelya Agustina, Op.Cit., p. 324.
25
Cindy Galway Buys, et al., 2011, “Do unto Others: The Importance of Better Compliance with Consular
Notification Rights”, Duke Journal of Comparative & International Law, Vol. 21 No. 461, North Carolina,
Duke University School of Law, p. 486.
26
International Court of Justice, La Grand Case (Germany v. United States of America): Summary of Judgements
and Orders, taken from https://www.icj-cij.org/files/case-related/104/7728.pdf, accessed on May 6th, 2019 at 8
pm.
 does not allow the Consular Official of Paraguay to aid Angel Breard. 27 At the first trial,
Angel Breard was sentenced to fine and death sentence. After that Angel Breard proposed
Habeas Relief28 and stated that the United States allegedly violated the Vienna Convention
on Consular Relations 1963 at the time of its previous arrest by not informing itself that as
citizens of Paraguay he had the right to contact his country's consular officer.

c. The Avena Case (the United States v. Mexico)

In the case of Avena that occurred in 2003, the United States through several states of
California, Texas, Illinois, Arizona, Florida, Ohio, Nevada, Oklahoma, and Oregon
sentenced 54 Mexican citizens to death. The imposition of the death sentence was carried
out without consular notice to Mexico's diplomatic and consular representatives in the
United States.29 Against this punishment, the Mexican government finally brought the case
to the International Court of Justice because the United States violated Articles 36 and 37
of the Vienna Convention on Consular Relations 1963 concerning diplomatic notice and the
provision of consular protection to German citizens.

As well known, international law does not have an executive body to enforce sentences,
so the ICJ can only decide that the United States has violated international law, paid
compensation, and gave orders to review the verdict, but could not change the death penalty
dropped by the United States because it contradicts the principle of sovereignty, it can be seen
that the two countries must base foreign relations on every issue involving citizens of other
countries. Violations of the provisions of the convention by other parties do not cause a loss of
the obligation of the party to implement the provisions of the convention.30
From that history, the United States then decided to form a separate agreement which was
later called Mandatory Consular Notification. Until now, the United States has a Mandatory
Consular Notification agreement with 57 countries.31 This agreement was then imitated by
almost all countries in the world to maximize protection for citizens who are abroad.
The right to get notifications and access is reflected in Article 36 of the Vienna Convention
on Consular Relations 1963, which was widely accepted as an international practice standard
by participating countries and not participating countries. This is because the Convention is
based on the beliefs of countries, as well as those held in the Preamble, that the convention is
a contribution as development or friendly relationship between countries. However, this is not
affected by the constitutionality of different countries.32 There are several functions of consular
relating to nationals of the sending State:
(a) Consular officers shall be free to communicate with nationals relating to nationals of the

27
International Court of Justice, 1998, Vienna Convention on Consular Relations (Paraguay v. United States
of America): Summary of Judgements and Orders, taken from https://www.icj-cij.org/files/case-
related/99/7601.pdf accessed on May 6th, 2019 at 4:45 pm.
28
Habeas Relief or Habeas Corpus is a concept originating from the Anglo Saxon justice system, where the
concept gives the suspect or defendant the right to prosecute officials who make detention (police or prosecutors)
to prove that the detention is not illegal and is in accordance with the provisions apply.
29
Melda Kamil Ariadno and Iman Rizani, 2006, Case Concerning Avena and other Mexican Nationals,
Indonesian Journal of International Law, Vol. 3, No. 3, Jakarta, Universitas Indonesia Press, p. 443.
30
Ibid.
31
United States Departement of State, Consular Notification and Access, taken from
https://travel.state.gov/content/travel/en/consularnotification/QuarantinedForeignNationals/countries-and-
jurisdictions-with-mandatory-notifications.html accessed on May 6th, 2019 at 8:30 pm.
32
This was conveyed by the American Embassy to the Syrian Government in response to the arrest of two US
citizens in Damascus on January 2, 1975. The arrest was not accompanied by consular notification and
disapproval of requests for consular access to prisoners. Quoted from Luke T. Lee, 1991, Consular Law and
Practice 2nd Edition, Oxford, Oxford University Press, p. 145.
 sending State and to have access to them. Nationals of the sending state shall have the
same freedom with and access to consular officers of the sending state;
(b) If he so requests, the competent authorities of the receiving state shall, without delay,
inform the consular post of the sending state if, within its consular district, a national of
that state is arrested or committed to prison or custody pending trial or is detained in any
other manner. Any communication addressed to the consular post but the person
arrested, in prison, custody or detention shall be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned without delay of
his rights under this paragraph.
(c) Consular officers shall have the right to visit a national of the sending state who is in
prison, custody or detention, to converse and correspond with him and to arrange for his
legal representation. They shall also have the right to visit any national of the sending
state who is in prison, custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from acting on behalf of a national who is
in prison, custody or detention of the expressly opposes such action.

In Article 36 of the Vienna Convention on Consular Relations 1963, then by many

countries more specialized in a separate agreement which was then called Mandatory Consular
Notification or consular notification. The Vienna Convention on Consular Relations 1963 did
not specify in detail the definition or work system of the Mandatory Consular Notification.
However, Article 36 of the Vienna Convention on Consular Relations 1963 can be interpreted
so that it can be concluded that consular notifications are:
1. Consular notification is facilities that give by international law to the consul or consular
officers of the sending States to communicate with their nationals in the receiving States;
and
2. Consular notification is rights of nationals who are arrested and detention to get assistance
from their consul.

From these definitions above, conclude that consular notification is a formal

announcement of fact or actions about nationals. Consular notification is not always about
arrest or detention, but also about deaths, guardianship or trusteeship, wrecks, and air accidents,
birth, and insurance.33 Regarding the basis of the formation of the Mandatory Consular
Notification, there are implicitly no conventions governing the establishment of this agreement.
Mandatory Consular Notification is a freedom for the state, which is formed by agreement and
outlined in the form of a written agreement. With the written form of Mandatory Consular
Notification certainly brings its consequences, namely a consular notification is more
compulsory, and its implementation is carried out without regard to the request of the country
concerned. The implementation of consular notification in the Mandatory Consular
Notification is different from Article 36 of The Vienna Convention on Consular Relations 1963

33
Following are the contents of Article 37 of The Vienna Convention on ConsularRelations 1963:
If the relevant information is available to the competent authorities of the receiving state, they shall have the
duty authorities;
(a) In the case of the death of a national of sending state, to inform without delay the consular post in whose
district the death occurred;
(b) To inform the competent consular posts without delay, where does the appointment of a guardian or other
person lack a full capacity who is a national of sending state. The giving information hall, however, will have
prejudice to the operation of the receiving state regarding appointments;
(c) If a vessel, having the nationality of the sending state, is registered in the receiving state as an accident on
the receiving state. To inform without delaying the nearest consular post to the scene of the occurrence.
which is optional base, where consular notification is only needed if there is a request from that
foreign country.34
Mandatory Consular Notification will maximize the implementation of procedures and
details of the Vienna Convention on Consular Relations 1963. A consular notification based
on the Vienna Convention on Consular Relations 1963 has three principles, namely:
a. Principle of Obligation;
What distinguishes the existence of a Mandatory Consular Notification agreement is
the level of state obligations. The state has more binding obligations regarding the
delivery of notification of the occurrence of arrests and detention without delay.
b. Pacta Sunt Servanda Principle;35
The emergence of a Mandatory Consular Notification is based on a binding agreement
between the sending country and the recipient country, either before or after the
investigation.
c. Reciprocity Principle.
The state, through its consular officer, must notify consular notifications with certainty,
and treat foreigners with equal treatment when arrested and detained. In this case,
Indonesia will be represented by the Ministry of Foreign Affairs and the Directorate of
Indonesian Citizens Protection and Indonesian Legal Entities. The consular officer must
also ensure that the country does the same.

2.2 The Importance of Mandatory Consular Notification for Consular Relations

Between Indonesia and Other Foreign Country
Indonesia is a state which has many citizens who are working, living, and having education
abroad, due to that is very importance to create Mandatory Consular Notification with other
states. The Mandatory Consular Notification will provide guarantees for respectable consular
notification procedures because not all countries that have ratified article 36 of the Vienna
Convention on Consular Relations 1963 made notice.36
Consular notice becomes compulsory if there is a treaty that as a result between two
nations. A consular officer shall be notified, without reference to interest or demand of the
arrested citizen, regardless of whether the individual asked that he/she not be informed.
Consular warning not exclusively can guarantee the Indonesian Government's capacity to
ensure its residents yet, in addition, can prevent unnecessary case and legitimate difficulties
that can threaten cases.37
Consular relations have some capacity that is changed surely and incorporate the security
of the interests of the sending state, and it's national. There are38
• Protecting the interest of sending state in the receiving state, both in people and bodies
corporate, inside the points of confinement allowed by international law.
• Furthering the improvement of business, monetary, social, and logical relations between the
sending state and the receiving state;
• Ascertaining by every single legitimate mean conditions and advancement in the business,
monetary, social and explicit existence of the receiving state;
• Issuing identifications and travel reports to nationals of the sending state, and visas or
suitable records to people wishing to make a trip to sending state;
• Assisting and helping national;

34
Luke T. Lee, 1991, Consular Law and Practice 2nd Edition, New York, Oxford University Press, p. 155.
35
Article 26 of the Vienna Convention on the Law of Treaties 1969
36
Craig Forcese, 2006, The Capacity to Protect : Diplomatic Protection of Dual Nationals in the War on Terror,
European Journal of International Law, Vol. 17, No. 2, New York, Oxford University Press, p. 374.
37
Malcolm D. Evans, 2014, International Law First Edition, Oxford, Oxford University Press, p. 391.
38
Shaymin Ak., 1998, Hukum Diplomatik Suatu Pengantar, Bandung, Armico, p. 111.
• Acting as legal official and civil register;
After getting consular notifications, the citizens will get consular access. The Rights of
Consular Access are:39
• Consular visits. Under conditions requiring notice, or when a foreign national is kept in a
military restriction office, the consul has the privilege to visit the foreign national right
away. Such visits will be conducted by imprisonment office guidelines.
• To communicate among consul and foreign national. Whether or not a foreign national is
confined, he will reserve a privilege to convey either orally, including telephonically, or
recorded as a hard copy with the consul. Every single such correspondence will be treated
as favored and not expose to examination or observing, aside from in those extraordinary
cases wherein the informing officer verifies that national security contemplations are
included.
• And other consular rights. The consul will give full chance to defend the interests of the
foreign national concerned. The consul has the right to meet, to advise, to arrange legal
representation. The Consul or other authorities of the foreign nation will be treated with the
dignity and civility according to his office.

39
Article 36 Vienna Convention on Consular Relations 1963.