July 2007


Australian exceptionalism

By Daniel Hoare
Australian exceptionalism

Michael Czugaj and Scott Rush learning Indonesian in Bali's police headquarters, April 2005. © Mich Tsikas - AAP Image.

The Bali nine and the future of the death penalty

In March this year, while members of the United Nations Human Rights Council gathered in the UN's plush Geneva office for a three-week sitting, six young Australians contemplated their fate in the shared cells - cramped and smelly, without ventilation or running water - of Bali's Kerobokan prison. Andrew Chan, Si Yi Chen, Tach Duc Thanh Nguyen, Matthew Norman, Scott Rush and Myuran Sukumaran are convicted drug traffickers on death row. Along with three other young Australians, they were apprehended in Bali in April 2005 after attempting to smuggle more than eight kilograms of heroin into Australia.

Unless a major legal precedent is set and their sentences are rescinded, these six members of the Bali Nine will one day be dressed in white aprons with red targets painted over their hearts. Each will be handcuffed to a pole on a secluded Indonesian beach while around a dozen paramilitary police choose from a row of guns ten metres away. Only two of the guns will contain live rounds of ammunition, and the police officers will never know who fired the fatal shots.

Since 1973, when the death penalty was abolished in Australia, the nation has taken a reasonably consistent international stance against capital punishment. In 1990 Australia signed a UN protocol that called upon all signatories to abolish the death penalty in their own countries and, according to some international lawyers, obliged them to advocate the worldwide abolition of the practice. But this year, despite the fact that six Australian citizens were awaiting execution in Indonesia, the federal government chose not to voice its objection to capital punishment at the meeting of the UN Human Rights Council.

Australia was represented in Geneva by its UN ambassador, Caroline Millar. It was also unofficially represented by Philip Alston, a professor of law at New York University and the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Alston presented a report to the council outlining his argument, based on international law, that the death penalty should not apply in any country for crimes that are considered to be non-violent. He expected Caroline Millar to put this view to the assembled nations. "It would have been a very easy opportunity to say that Australia considers that the death penalty should not be applied for drug trafficking," says Alston. Though it isn't a member of the council, Australia, like all represented countries, has the right to put its case - and, Alston says, its citizens will not stand a chance of gaining clemency when sentenced to death in other jurisdictions if it doesn't use such forums to argue against capital punishment.

Alston, the brother of former Howard communications minister Richard Alston, has long been critical of the current government's international stance on the death penalty, which he describes as "Australian exceptionalism". Australia, he argues, only objects to the death penalty in drug-trafficking cases when Australians are involved. The position is counter-productive, says Alston, leaving the nation open to accusations of double standards, especially when it makes last-minute entreaties to other countries to spare its citizens from the death penalty. "Any Asian government is fully justified in considering it to be an almost racist position to be saying, ‘You can go ahead and execute your own citizens for these offences, but if it's one of ours it's different and you shouldn't do it,'" Alston explains. "The argument has to be generalised so that no country should execute anyone for drug offences."

According to Alston, "the Australian government, if it is going to give any credence to its alleged position, would draw up a plan of action to try and promote in relevant international forums such as the Human Rights Council the view that the death penalty for drug crimes is unacceptable." He says it's not the first opportunity that Australia has missed to speak up at the UN, and he warns that the government's present approach - intense diplomatic lobbying on behalf of those Australians sentenced to death overseas - cannot be expected to work in the future.

While Australia's stance on capital punishment may be weakening, the death penalty is being abolished, albeit slowly, in other countries. The practice is still widespread - Amnesty International estimates that Iran, Iraq, Pakistan, China, Sudan and the US carried out 91% of the world's judicial executions in 2006 - but in Latin America the death penalty has all but been eliminated, while in Africa there is also a strong trend towards abolition.

Many Asian countries started cracking down on drug trafficking when heroin started coming across their borders in the early 1970s, as the Vietnam War began drawing to a close; in 1975, Singapore, Malaysia and Indonesia, fed up with being exploited as transit routes, began imposing the death penalty for trafficking. The practice soon spread to the Middle East and North Africa. But 25 countries from the Asia-Pacific region have since abolished state-sanctioned execution - most recently the Philippines in June 2006, thereby sparing the lives of an estimated 1200 people on death row.

Philip Alston points to two other countries that he says have, surprisingly, given thought to abolishing the death penalty. "The official position expressed to me by China is that one day the death penalty will be universally abolished. There is a very active debate among judges and law reformers [there] about the need to adopt a much more restrictive approach to the death penalty, particularly with regard to limiting it to the ‘most serious crimes'." And the Singaporean government, despite its traditionally tough stance, is also facing opposition to the death penalty. Alston says the Law Society of Singapore recently made an official submission to the government urging the mandatory death penalty for some crimes be removed, to reflect the "evolving standards of decency in Singaporean society".

If Australia takes a principled stance on the death penalty internationally by insisting it should not apply to any crime, most European countries - the "champions of death-penalty abolition", as Alston puts it - would show solidarity. European nations, Alston says, "won't extradite anyone to a country where a person might be executed. If an Indonesian shot 500 people and fled to Europe, the European Convention on Human Rights prevents a European country from returning that person to Indonesia, unless the government of Indonesia gives an assurance that that person will not be executed. It's something Australia could do right now by revising the terms of all of its extradition agreements."

Alston says that Australia could also attempt to develop alliances with countries in Asia that oppose the death penalty. He cites the Philippines as an example: "There's a number of their citizens working overseas - there are millions - and a number of them have been subject to the death penalty in Middle Eastern countries. There was no point in going to the Saudis and the Qataris and others and saying, ‘You can execute your own citizens but you shouldn't execute a Filipina,' and so they drew the logical conclusion, which is that you've got to eliminate the death penalty at home and then take a general abolitionist position internationally."

The recent inconsistencies in Australia's approach can be traced to 2003, when death sentences were handed down to two of the so-called Bali bombers, Amrozi bin Nurhasyim and Imam Samudra. The judges described the bombings as "the worst act of terror since the September 11 attacks in the United States", and said that "bringing the perpetrators to justice [was] an important step in ensuring that what happened in Bali [was] not repeated." Despite professing to be opponents of the death penalty in Australia, both the prime minister and the then Opposition leader, Simon Crean, said they wouldn't approach the Indonesian government and ask it to reconsider the penalties. "Some people say that I should be thumping the table and saying, ‘Don't execute,'" Howard commented. "I'm not going to do that because I do respect the judicial processes of Indonesia. I also believe for me to do that would offend many Australians who lost people, who legitimately feel, as decent Australians, that a death penalty is appropriate." Crean agreed: "the fact is [Amrozi] committed a crime on Indonesian soil and he faced justice under the Indonesian judicial system. I'm not quibbling with their decision."

When the sentences were announced in 2003, many Australians, particularly relatives of the victims, were relieved. Not only were the deaths of 88 Australians at a popular tourist destination still fresh in people's minds, but concerns about global terrorism were at their peak. There were signs that Australians' opposition to capital punishment - at home, as well as overseas -was weakening. In August of that year a poll in the Australian asked, "Would you personally be in favour or against the introduction of the death penalty in Australia for those found guilty of committing major acts of terrorism?" Fifty-six per cent were in favour.

It is difficult to know how many would have agreed with the words of Justice Michael Kirby who, just a couple of months later, addressed a group of lawyers gathered to mark the centenary of Australia's High Court. Kirby told them that the death penalty must be opposed even when it is applied to those who have committed atrocities. "That is when our adherence to human rights is tested," he said. "It is not tested in dealing with people like ourselves with whom we can identify. It is tested when we deal with strangers who are hated and feared. If you ask, ‘What is the essence of human rights?' I think it's love: that you can love another person, even a person who's done very wrong things, because you realise you share with them the phenomenon of the common existence of our species."

The then leader of the Democrats, Andrew Bartlett, was one of the few politicians to speak out against the Bali bombers' death sentence in a manner akin to Kirby's. "I believe that the Australian government and the Australian people should be opposed to the death penalty under any circumstances," he said. "There's no doubt that Amrozi has committed a barbaric act, but I believe the death penalty is also barbaric, and we shouldn't respond to barbaric acts by sinking to that level ourselves." Another federal politician, the Labor backbencher Duncan Kerr, warned that principled opposition to the death penalty couldn't simply be switched on and off. It was "almost inevitable that there are going to be Australians sometime in the future who are put on trial and face the death penalty in a country where the legal system doesn't measure up to the standards that we have, and where the death penalty is imposed," he remarked. "In the past we've always said that we take a principled objection to the implementation of the death penalty, and I'm certain that the words that we have used, saying that ‘Because it is occurring in another country we can stand aside,' will be thrown back in our faces."

Kerr's observation was prophetic: by 2005 there were 11 Australians in Asia facing the prospect of the death penalty. Alongside the Bali Nine was Schapelle Corby, who'd been apprehended carrying more than four kilograms of marijuana. And on death row in Singapore's Changi Prison was Van Tuong Nguyen, a young Melbourne man convicted of attempting to traffic heroin. The federal and Victorian governments made numerous bids for Nguyen to be spared, pleading with politicians in Singapore, including the country's prime minister, Lee Hsien Loong. The federal parliament passed a motion requesting clemency; trade sanctions against Singapore were discussed; and Foreign Minister Alexander Downer even explored the possibility of taking Nguyen's case to the International Court of Justice, a move that wasn't pursued (Singapore doesn't accept the court's jurisdiction). John Howard then used the Commonwealth Heads of Government Meeting in Malta to make a fifth personal plea to his counterpart, warning that Singapore should prepare for "lingering resentment" in Australia if the execution went ahead.

The federal government's requests for clemency recalled the case of Kevin Barlow and Brian Chambers in the 1980s, when Prime Minister Bob Hawke made an impassioned plea for the Malaysian government to spare the Australians from being executed. When his pleas were ignored, Hawke later described the hangings as "barbaric", infuriating Prime Minister Mahathir and many Malaysian citizens.

The fact that Van Nguyen had confessed to his crime, that he had assisted police, that he was young and that he had never been convicted of a previous crime counted for nothing. In a letter to his Australian counterpart, the speaker of the Singaporean parliament, Abdullah Tarmugi, wrote that his country had "an obligation to protect the lives of those who could be ruined by the drugs Nguyen was carrying. He knew what he was doing and the consequences of his actions." Lee Hsien Loong said matter-of-factly that "all factors were taken into account including petitions and letters from Australian leaders," and that "the government decided that the law had to take its course."

Nguyen was executed at the end of 2005, and the circumstances of his death - the failure of the Australian approach ­- set the scene for the Bali Nine case, which is likely to conclude by late 2007. The six members of the group sentenced to death are soon to learn whether the Indonesian justice system offers a better prospect of escaping state-sanctioned death.

What's controversial in the case of the Bali Nine is the role played by the Australian Federal Police (AFP). Days before the group's arrest the AFP's senior liaison officer in Bali, Paul Hunniford, sent letters to the Indonesian National Police in Denpasar. In one, dated 8 April, he wrote that the AFP had "received information that a group of persons are allegedly importing a narcotic substance (believed to be heroin) from Bali to Australia using eight individual people carrying body packs strapped to their legs and back". The letter detailed the suspects' names and the dates on which the AFP believed they would be entering and leaving Indonesia. If the Indonesian police "suspect that Chan and/or the couriers are in possession of drug[s] at the time of their departure", Hunniford said, they should "take what action they deem appropriate".

Acting on the AFP's information, Indonesian police arrested Michael Czugaj, Scott Rush, Martin Stephens and Renae Lawrence at Bali's Ngurah Rai Airport on 17 April 2005. Within hours, the four drug couriers appeared on Australian television with bags of heroin crudely strapped to their torsos. A Channel Ten journalist had negotiated for the footage in the car park of a takeaway-chicken outlet. Andrew Chan was later arrested at Denpasar Airport, while Tach Duc Thanh Nguyen, Myuran Sukumaran, Si Yi Chen and Matthew Norman were arrested that same night at their Kuta hotel, albeit without being paraded ingloriously on the television sets of their fellow Australians.

The commissioner of the AFP, Mick Keelty, has been unapologetic about the role played by his organisation in the arrests of the Bali Nine. He argues that it would have been too risky to have allowed the drug traffickers to board a flight to Australia and hence be tried in a more lenient jurisdiction. "One of the things we've got to remember," Keelty said shortly after the arrests, "is that we operate within our criminal-justice system here in Australia, and if we only co-operated with countries that had the same criminal-justice system, then our co-operation wouldn't extend very far beyond Australia. We have to work with the systems that operate in other countries, and to a large degree this has been successful, certainly in terms of heroin trafficking."

Terry O'Gorman, from the Australian Council of Civil Liberties, responded: "We have had a bipartisan policy in this country that we will not be party to Australians being put to death for alleged criminal offences in other countries. In this instance, this policy has been seriously and significantly deviated from." But Senator Chris Ellison, then the justice and customs minister, said that Australia had not breached any of its international commitments: "It's certainly not in breach of Australian law for there to be police-to-police assistance on a matter which may carry the death penalty." Indeed, the AFP's guidelines state, "the death penalty is not sufficient reason for Australia to disengage in collaborative efforts" with other countries. Philip Alston argues that changing those guidelines could help swing other countries towards opposing the death penalty - that by stating that Australian "co-operation is dependent upon not seeking the death penalty" other countries will slowly changes their laws.

In July 2006 - after two further AFP-inspired heroin-smuggling arrests, this time in Vietnam - federal Labor's then justice spokesman, Senator Joe Ludwig, called for clearer guidelines to be drawn up so that the AFP could avoid more Australians facing the death penalty overseas. There needed to be "clear guidelines so that our police can act with confidence", Ludwig said. "It would ... ensure that the officers themselves aren't put in positions of making moral decisions of this magnitude. And, more to the point, I think our officers wouldn't want to be placed in that position either."

The Australian barrister Julian McMahon describes Indonesia's Constitutional Court as "a combination of high technology and traditional Indonesian elegance". But the aesthetics of Indonesia's most modern and progressive court matter little to the six Australians who face the death penalty in Bali. The nine judges who preside over the Constitutional Court may well determine the fate of the Australians, and in so doing make one of the most significant decisions in Indonesian legal history. While the lawyers for Si Yi Chen, Matthew Norman and Tan Duch Than Nyugen are still pursuing the more orthodox process of Supreme Court appeals to spare their clients from the firing squad, the legal case being pursued in the Constitutional Court on behalf of Scott Rush, Andrew Chan and Myuran Sukumaran could not only determine their fate but, potentially, that of all Indonesian death-row prisoners who have been convicted of drug trafficking. It is possible that if the case is successful, all prisoners currently facing the death penalty for drug trafficking in Indonesia will have their sentences commuted.

The Constitutional Court was established in 2003 as part of the reform process that followed the end of Soeharto's long reign. It's a court based not on adversarial argument, but rather a more measured presentation of constitutional issues arising from both sides of a debate. In this case the debate relates to the Indonesian Constitution and its explicit statement that the right to life "cannot be diminished under any circumstances". The high-profile legal team representing Rush, Chan and Sukumaran say that their clients' fundamental right to life under the country's constitution is jeopardised by their death sentences.

The two Melbourne barristers heading the action are Julian McMahon and Lex Lasry, who worked on the Van Nguyen case in Singapore. They are, as in the Nguyen case, acting pro bono, with their out-of-pocket expenses paid by the Australian government. A parallel action, also funded by Australian taxpayers, is being made by the Darwin barrister Colin McDonald, who is representing Scott Rush. None of the Australian barristers, though, will be addressing the judges, as non-Indonesian lawyers have no standing in the Constitutional Court. They will instead rely on three Indonesian lawyers to present the case to the nine eminent judges. Leading them is Todung Mulya Lubis, a Harvard graduate, local law-reformer and human-rights lawyer who has the imprimatur of Alexander Downer to act in the case.

"We needed a lawyer of excellent reputation and undoubted good judgement," says Julian McMahon, whose clients had seemingly exhausted all legal avenues after losing their initial cases in Indonesia's trial court, intermediate court and then the Supreme Court. "Mulya Lubis met that criterion. He is well respected, interested in the issues and has enough gravitas to run such a challenging case. He has never done drug work, because lawyers who do drug work in Indonesia sometimes get tarred with the brush of being disreputable. He comes from an extremely reputable firm in Jakarta, and like lawyers of his standing in many countries he has had a long interest in the justice system as a whole, and therefore is attracted to any legal challenge which looks at issues of the rule of law. And he's always been opposed to the death penalty."

Philip Alston has testified on behalf of the convicted Australians as part of the Constitutional Court case. He says the court provides much reason for optimism. "I can't say that I have got a particularly rosy picture of Indonesian justice based on the way in which the various courts have performed in relation to the Bali Nine and other cases," he says. "But the process of the Constitutional Court is an impressive one. The judges did have the courage to overturn the transitional justice law, the one which would have granted amnesty to people involved in Timor killings and so on, and that was a pretty dramatic move. The court has shown itself to be independent and willing to take positions that are unpopular with the government."

Alston's view is shared by Tim Lindsey, the director of the Asian Law Centre at the University of Melbourne. He says the court has no fear about making decisions that don't suit the Indonesian government. "This court is a brave new world, an entirely new experiment for the Indonesian system, and it has proven itself to be remarkably courageous, independent in its thinking and quite prepared to knock out legislation, regardless of what the government thinks. Most observers would consider it the best performing court in Indonesia, certainly the most professional."

Lindsey has followed the Bali Nine case closely. He believes that anyone who has observed the process of the Constitutional Court challenge would be convinced that for the Australians on death row there is some hope of a reprieve. "The court is spending a lot of time on the claims of the lawyers for the Bali Nine and looking at the submissions they are making very seriously," Lindsey says. He cautions that a victory in the Constitutional Court will not necessarily mean that the six Australians escape the firing squad; however, the Indonesian president will be under pressure to act decisively should the judges rule in favour of the drug smugglers, which means that "overall there is still a pretty good chance of the Australians not being executed."

"If they win, they still have a long way to go," he says. "Their sentences still stand. Because it is not an appeal, the court cannot make any order relating to their existing sentence. But if they win, it will give immense ammunition for one of two things: either an application to the Supreme Court, for those who haven't exhausted that, or an application for clemency," Lindsey explains. "It offers the Indonesian president - rather than saying he is giving in to special pleading from Australia - a chance to say that he is respecting the constitution of his country, and that he will pardon anyone who is facing the death penalty because the Constitutional Court has directed him to."

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