July 2007

Essays

A letter to the Prime Minister from death row

By Richard Bourke

Dear Prime Minister,

I think it is wrong to kill people. It has become apparent that you and I differ on this. In particular, I think it is wrong for the state to kill prisoners under a scheme of capital punishment. Despite occasional protests to the contrary, you do not.

Many people disagree on this subject. This does not make them evil or barbarians, nor does it call for any other disrespectful epithet. The problem is that Australia as a nation is implacably opposed to the death penalty, and you appear to have ignored this fact. The Australian Federal Police (AFP) also appears to have lost sight of it.

It has been 40 years since a prisoner was executed in Australia, and even longer since the abolition of the death penalty began its march through the legislatures in state after state. Under the laws of every state, and both the civilian and military laws of our federal government, the death penalty has been abolished. This is an emphatic statement in a country where our several jurisdictions have historically been unable to agree on other morally loaded questions such as the scope of abortion rights, euthanasia, drug decriminalisation, recognition of same-sex partnerships, workers' rights and mandatory detention, and even on less thorny questions such as the best gauge for railway lines.

It is more than 15 years since Australia signed the Second Optional Protocol to the International Covenant on Civil and Political Rights. In so doing we stated as a nation that we were "convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life", and we made "an international commitment to abolish the death penalty". We were right to do this. To deny the fundamental dignity and uniqueness of human life by executing prisoners diminishes our own humanity and wounds our capacity for compassion. A generation of Australians that had the death penalty and knew what it was opted to abolish it. I know what it is and I have seen its work.

In February 2003, after months of desperate work and legal battles, I watched the State of Texas kill one of my clients. Of the many emotions and fractured thoughts that went through my mind, I remember clearly thinking that if those who believe they support the death penalty could see what I had seen, they would quickly realise that they did not want any part of it. It looks wrong and it feels wrong because it is wrong.

Nevertheless, I can respectfully disagree with you, Prime Minister, about whether it is right or wrong to kill people. However, I am unable to maintain that respect when you speak words in favour of death on behalf of Australia, and I am unable to fathom how our national police force has taken an active role in handing Australian citizens over for execution.

In 2001 you publicly described your objection to the death penalty as purely pragmatic, a fear that the system might get it wrong, and left the matter of the reintroduction of the death penalty to the states - this, notwithstanding our international obligations and undertakings to abolish the death penalty. Since then you have publicly abandoned Australia's long-stated opposition to the death penalty, commenting favourably, rather than unfavourably, on death sentences for terrorists and dictators (the Bali bombers: "that is how things should proceed"; Saddam Hussein: "absolutely"). In so doing you have directly diminished Australia's ability to mount principled opposition to the death penalty for even our own citizens, as noted by the Singaporean authorities ahead of the execution of the young Australian man Van Nguyen in 2005. You have certainly made a mockery of the efforts by the lawyers for those members of the Bali Nine facing death to argue that the death penalty violates the fundamental right to life, even though that is Australia's internationally proclaimed position on the issue.

While continuing to state that you do not favour the death penalty in Australia, your government has allowed the AFP to actively work to have people arrested overseas, where they can face death for drug offences, rather than in Australia, where the maximum penalty is life without parole. This is simply the outsourcing of capital punishment, in the same way that America's so-called rendition program outsources torture.

Australia is now in a position where it is internationally opposed to the death penalty in all circumstances, but its leader nonetheless speaks in favour of it in some. We absolutely will not extradite an Australian prisoner to another country if he or she may be executed, but we procure the arrest of Australians abroad for capital crimes before they cross the border. We ask foreign governments to respect our opposition to the death penalty for our citizens while supporting the execution of their citizens.

The case of the Bali Nine was not the first time that the AFP has caused the arrest of drug traffickers at the time of departure in a capital jurisdiction, rather than at the time of their arrival in Australia. However, it appears likely that this time Australian lives will be lost as a direct result of the AFP's actions. The leadership of the AFP has at times made a weak attempt to cast a moral cloud over their role in the Bali Nine case, talking about the "big picture" and "an event we had no control over". Yet there is no moral cloud: the AFP actively worked to have the Bali Nine picked up in Indonesia. They unambiguously and in writing invited Indonesia to arrest the drug smugglers, and their explanation of the strategic reasons for their conduct make it clear that this was their express objective. Ultimately, when challenged, Commissioner Bill Keelty has abandoned the shelter of moral fog and given every indication that the AFP would do the same again.

The AFP's guidelines prohibit international assistance where there is a capital charge. However, prior to charge, no matter how inevitable a capital prosecution may be, the guidelines permit the AFP to participate and assist in building a case and procuring arrests. The AFP have interpreted "charge", in this context, in such a way as to justify their continued involvement in assisting the Indonesian authorities to build a case for death in Bali even after the arrests were made. The guidelines, as written and applied, are simply institutionalised wilful blindness, an attempt to wash our hands of that which is our clear moral responsibility.

No doubt there are shades of grey as to whether or not some investigations may end in a capital charge, but the Bali Nine case was not one of those. One thing that distinguishes the Bali Nine case is that it was not a request by Indonesia for the co-operation of Australian law enforcement in an Indonesian operation. The AFP procured the arrest of Australian citizens in Indonesia knowing full well that the penalty of death applied.

The AFP could and should have arrested these drug traffickers on arrival in Australia, rather than signing their death warrants. The AFP, when working in our region, should behave as numerous other national law-enforcement agencies do, by co-operating in international law enforcement but declining to assist in the procurement or imposition of death sentences. At times, declining to proceed on a path that leads to executions may impair the breadth or success of an operation, but so does eschewing torture, bribery, the planting of false evidence and an array of other bright lines that we do not cross in law enforcement. It is not consistent with our nationally adopted position, or the fundamental value of all human life, to see state-sponsored executions as an acceptable cost of doing business.

It is important to know that many elements of the Australian government, often with little recognition back home, have worked very hard and very effectively in our region to save the lives of Australians abroad who may otherwise have been executed. I also believe that many in Australia's government were surprised and deeply affected by the execution in Singapore of Van Nguyen.

I believe that quiet diplomacy rather than insulting words are the order of the day, and that we must respect those countries around us that continue to pursue capital punishment while still maintaining and acting on our own principled opposition to the practice. It shows no disrespect to differ on the death penalty, but to pick and choose between cases and countries only breeds contempt.

Sincerely,

Richard Bourke

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