Andrew Chan and Myuran Sukumaran’s executions in Indonesia last week have naturally led to a debate about the AFPs involvement in the original arrest of the Bali 9 and what position should be taken in future. Much of this debate has centred around the acceptability in the context of the specific circumstances. The Bali 9 were bringing heroin to Australia, which most Australians find repugnant and which would potentially have led to the deaths of a number of Australians (plus the misery of many more). The AFP’s choice to provide information to the Indonesian National Police (INP) is then referenced to that, making it easier to excuse, tolerate or even endorse. However, the AFP’s actions should be seen independently of the Bali 9’s and more weight should be given to Australia’s stance on the death penalty.
The view that the AFP’s participation was acceptable (or even just that it is not unacceptable) is largely predicated on the idea that it is only the crime that is relevant and that once this component is resolved the associated punishment becomes a moot issue, despite the fact that Australia as a nation does not hold this view. Not only do we not accept the death penalty as punishment for anything, we have established ourselves as anti death penalty: it is not just abolished under our laws, but we are a signatory to the Second Optional Protocol of the International Covenant on Civil and Politial Rights. So just because we regard drug trafficking as a crime, it doesn’t follow that we might tolerate executions.
In providing the information to the INP, with knowledge of the potential consequences and without even seeking assurances otherwise, the AFP made a moral judgement that was contrary to Australia’s laws and values. They decided that the crime of drug trafficking was significant enough that it didn’t matter if the death penalty was applied. They may have been legally entitled to act as they did, but they certainly weren’t morally, and possibly ethically. They have since kept the focus on the law enforcement element of their role, but that is not the limitation of their responsibilities. As unelected public servants, they should not insert their views of the world for the views of the country they serve.
There are also practical dangers to redrawing Australia’s line on this issue. In China, the 50+ offences for which the death penalty is applicable include counterfeiting money and medicine, robbery and theft of firearms. These are all also crimes in Australia. Would it be acceptable for the AFP to provide information to the Chinese about someone’s participation in these crimes? To go further, if we are to ignore our values on punishment and move the line, there is no logical reason to ignore our position on crimes. In some Middle Eastern countries, a woman who is raped has committed adultery and a man who is gay has broken the law; both may receive the death penalty. Would it be acceptable for the AFP to provide information that a woman had been raped or that a man was gay?
While these are obviously outrageous ideas, they are merely greater extensions of the slippery slope down which the AFP and government have already gone. After the Bali bombings in 2002, the AFP naturally wanted to participate in the invesitgation because the main victims of that atrocity were Australians. Unfortunately Australia’s opposition to the death penalty was a problem because the charges would almost certainly carry that as a potential penalty. At that stage, Australia did not participate even at the investigation stage if the death penalty was on the table. So the government re-interpreted our position to be that Australia could participate in an invesitgation until actual charges were laid. The altered interpretation, brought about for the exception of a significant terrorist attack, was subsequently applied to a drug trafficking venture.
Even if one agrees with the (exceptional) use of the death penalty in terrorism cases, that does not automatically justify it in drugs cases. International law reserves the death penalty for the worst of the worst crimes against people, and drug trafficking is not included. Further, it is arguable that the Australian public endorsed the exception for the Bali bombings. There was no such public engagement in advance of the arrest of the Bali 9. Indeed, if anything, the Australian public’s position at the time was in favour of the AFP protecting Australians on drugs charges overseas. It was in the midst of the Schapelle Corby trial and Australia was baying for the AFP to assist her.
Of course, most Australians at that point believed Schapelle was innocent. However that in turn raises another issue with the acceptance of the AFP’s actions: that the end justifies the means. One justification cited is that Andrew and Myuran were guilty. But the AFP, no matter how much information they have, are not entitled to determine guilt. That is the domain of judges and juries, and requires an examination of the circumstances with adherence to certain procedures that constitute a fair trial. It is therefore irrelevant that the Bali 9 were subsequently found guilty and equally irrelevant for the AFP to state they had a belief in their guilt. At the time they passed on information to the INP they were potentially exposing innocent Australians to the death penalty.
Moreover, as long as the existing guidelines and law governing the AFPs actions allow them to participate in overseas investigations where the charges carry the death penalty, there is always the possibility that they will contribute to the execution of an innocent person. To suggest that the Australian government would find a way out of such a situation is to ignore history. Once individuals are under the jurisdiction of a foreign government, either legally or practically by being within that country, Australia can campaign, but is not in control of the outcome. Schapelle Corby, this Bali 9 matter, Peter Greste are all examples of this.
There is then the legal process in the other country to determine guilt, which could be argued is the check and balance on the AFP’s provision of information. But it would be foolish to believe that other countries’ legal processes are infalliable. Even the most well functioning legal systems in the world, including our own, make mistakes, and there are many that are far more open to injustice, arbitrariness and corruption. The death penalty is final. If a mistake is made, it cannot be reversed.
On this matter, the Bali 9 duo are a case in point. There are allegations of bribery and collusion between prosecutors, the judges and the government surrounding their original trials. Their trial lawyer, Muhammad Rifan, claims he was asked for $133,000 to have them avoid the death penalty, which was then increased after they were given a directive from Jakarta. Moreover, there were substantial inconsistencies at trial and appeal stage in the sentences given to other members of the Bali 9 and there have been broader allegations that the INP control the drug trade in Bali. These issues are not uncommon in the court system in Indonesia. Another man executed with Andrew and Myuran, Indonesian Zainal Abidin, allowed two acquaintances to stay the night at this house. That night the police raided the premises and found marijuana in bags belonging to the visitors. However, it was Abidin who was charged, covincted and ultimately executed. What if the Judicial Commission invesitgation, which was not allowed to play out before Andrew and Myuran were executed, returns a finding of corruption about the original trial? Regardless, this is not a system in which Australians should have faith, yet the AFP were prepared to stake Australian lives on it, and have maintained that they would do so again.
The only thing preventing these types of scenarios is the judgement of the AFP (and possibly a government minister) making a decision about the investigations in which to participate. To place that level of power (or trust, depending on your point of view) in any unelected individual or organisations’ hands, or even for that matter a single elected individual’s hands, is dangerous. No individual or organisation can be objective all of the time. Moreover, police work focuses on catching criminals and the damage done by crime, which naturally aligns their attitudes negatively towards perceived perpetrators. These are the very reasons they are not arbiters of guilt and punishment.
The only surefire way to protect against a miscarriage of justice and to uphold Australia’s values is to rule out participation when the death penalty is a possibility, full stop. Allowing exceptions, or a system where a person or people adjudicate whether involvement is appropriate, is to allow the aforementioned scenarios to eventuate.
The Bali 9 duo have been treated as collateral damage by the AFP and some members of the population. Apparently, we had to cop the loss of a couple of lives in the “war against drugs” and to preserve our information sharing arrangement with Indonesia. This, however, flies in the face of the premise on which our legal system is built: that it is better to let many guilty people go free than to lock up one innocent person. If this and our position on the death penalty are to be honoured and respected, we must be prepared to forgoe participation in the occasional investigation to guard against the possibility of other injustice.