Australian advocacy ruined most arguments for a Bali 9 duo reprieve

Jack Waterford

Editor-at-large, The Canberra Times

I'm fairly unmoved by the executions of two Australian drug smugglers in Indonesia. I do not believe at all in the death penalty, but I have a strong feeling that our attempts to get some exception from its operation for two of our citizens ruined almost every good argument against it.

First, I do not believe in the death penalty at all. I don't think it's OK for Indonesians, or Chinese, or Americans, but wrong when those selected for death are Australians. A good many Australians are like me – totally opposed to judicial execution in any circumstances – but they rarely make much of a fuss unless Australians are involved. Why? As often as not, indeed as in this case, Australians are capable of seeming more guilty – even deserving – than others about whose executions we say not a word.

Some of those believing that an exception should be made in favour of the Australians suggested that the sentence was in some way vitiated by the corruption of the Indonesian justice system, or, perhaps, even doubt about their guilt. I have no doubt that there are corrupt cops, judges, politicians and officials in Indonesia (I am not entirely sure they exist at a higher rate than in Australia). But my understanding is that there was never any doubt that both men were involved at an organisational level in drug distribution. And is it not, indeed, well known that the automatic penalty for trafficking, particularly on a large scale, is death? If, thus, corruption and improper bargaining and potential bribery were involved, it was not about perverting the proper verdict, but dickering about whether some discretion or exception could be made so that the usual standard was not followed. 

Executed ... Andrew Chan and Myuran Sukumaran have been put to death in Indonesia. Photo: SMH

I may agree until the cows come home that we should not automatically execute drug traffickers. But if someone is going to do so, I cannot see that it was, of itself, wrong to execute this particular duo. The mere fact that some alleged intermediary of a cop, a judge or an official asked for money, does not undermine the verdict.

Likewise, I can well understand why the professional advocates of the men, and the families, would fall upon every argument, of no matter what logical or legal worthiness, to argue for mercy, delay or discretion. But the fact that I would, personally and emotionally, prefer that such mercy was extended does not mean that I am obliged to think that the refusal of the Indonesian courts, or the executive authorities, was a reflection of their blindness, idiocy, corruption or obtuseness. Indeed I think a point was reached, several weeks ago, in which the dipping into the bottom of the barrel became a form of torture of the victims and their families. It had become obvious that workable arguments had been exhausted.

This does not suggest that there were no longer arguments against the carrying out of the death penalty in general. But no one seemed to be arguing that, as such. They were arguing that an exception should be made for these men. These arguments had been made, and heard, and considered. Perhaps they were good arguments. But, from the point of view of Indonesians, they were not the only considerations. Were I the president of Indonesia, considering matters from the national interest point of view, I doubt that I would have found them convincing. What's so marvellous about Australia that it, and apparently it alone, is suspended from the operation of the general Indonesian law. And what was so marvellous about the reformation of these men that it entitled them, alone of others in their position, to exemption from the laws of the land ?

One might have thought, moreover, that if the arguments against the death penalty were entirely one way that our great and powerful friends, the United States, or our greatest trading partner, China, would have already seen the light. Both countries execute people at a far higher rate than Indonesia, but without any Australian backlash. The justice system of both countries is in at least as poor repair as that of Indonesia. If our only concern is the fate of Australians, and our lack of protest to our other friends is a reflection of the fact that they have had the good sense not to execute our folk, even as they execute people they do not like, just what principle are we supporting? That Australians are special and exempt from the law of other countries?

The best case the Australian government had in seeking reprieve for the men involved requests for mercy, not least based on evidence of some rehabilitation while in jail. That was recognised early, not least by Malcolm Turnbull.

But an argument for mercy, by lawyers or others, is not easy to mount while simultaneously the justice of the verdict is being assailed, the propriety of the process attacked, and almost every official, from top to bottom, is defamed. I do not suggest that anyone's behaviour must be exempt simply because "we" are trying to butter them up, in the hope that they will exercise a discretion in our favour. What I suggest is that it is hard to beg a favour while simultaneously administering knees to the testicles, publicly doubting the integrity of those being asked, and pandering to the worst excess of the Australian media. It is also hard to listen to plainly desperate arguments for delay in circumstances where one knows they would not get a moment's attention in an Australian court. The general tendency of Australian reportage was to suggest that every argument was a clincher, and that every rejection of such an argument was a proof of Indonesian stupidity, cupidity or corruption.

Recent months have seen a self-imposed censorship in Australia. It became obvious that even a neutral article on the case of the two drug smugglers would be quoted in the Indonesian press to indicate Australian popular indecision or equivocation about execution. No one wanted to be cited as in favour of due process of law if the effect was to stiffen the mood of the authorities. This happened, for example, to me when I criticised the exceptionalist arguments of Tony Abbott as being more likely to cause Indonesia to execute than to step back from the brink.

Meanwhile, any amount of campaigning based on the idea of Australian exceptionalism has been published here without rebuttal. That coverage has, in effect, equated judicial execution with ordinary killing, and, in some cases, murder. The hysterical tone in some reportage has seemed to think the matters at issue are on a par with ISIS beheadings, or the death toll from Nepal. The coverage has lacked balance and proportion – and only because Australians were involved. Right now one feels some pressure to advance them on the path to canonisation. 

I feel sad for them, and for their families, but, frankly, this regret is not pressing me hard compared with other local, national and international matters. I'd rather that Australian empathy was focused on the citizens of Nepal. Or refugees in Libya. Or Syria or Iraq. Indeed, I can think of cases of people facing imminent execution who, on the face of things, are entirely innocent. 

If we want no more Australians judicially executed, we should be consistent in both our argument and practice by steadily campaigning against any more people, of any nationality, being executed anywhere. We should criticise any nation that does, even when they are powerful friends and partners. 

There's nothing special about Australian criminals, and certainly nothing particularly special about these victims. And, if we actually want an achievement in fighting capital punishment, other than some pleasure in morally grandstanding against a country which does not have much time or inclination to wonder or care about what we think, we should focus our attention on persuading legislatures in the US, a nation very much like us, but which, in terms of attitudes to the death penalty, is sunk in barbarism.

If we dare call the US – which, as often as not has more trouble than Indonesia in delivering a convincing result when minorities are involved – barbarous, we might begin to develop the right to worry about our next-door neighbour, a country which has been badly affected and corrupted by our national taste for illicit drugs, and which may not relish our thinking ourselves their moral superiors.

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