Wednesday 25 Apr 2018 | 12:55 | SYDNEY
Wednesday 25 Apr 2018 | 12:55 | SYDNEY

The death penalty

4 Nov 2008 13:45

Sometimes, with a rueful shrug, a nation must spell 'diplomacy', h-y-p-o-c-r-i-s-y. Hypocrisy is far from the worst sin in pursuit of national interest, but there is usually a price to pay. The history of Australia’s relations in Southeast Asia hints at the diplomatic dynamic that will flow from the execution of the Bali bombers.

On the bombers, Kevin Rudd is adopting the exact position of the Howard Government. That puts Rudd at odds with the long-standing policy of the Australian Labor Party, with its statement of complete opposition to the death penalty.

The Prime Minister judges that uttering no words in opposition to the Indonesian firing squad is a reflection of the Australian popular will. Rudd follows Howard, who saw nothing wrong with the execution of Saddam Hussein, but protested forcefully at Singapore’s execution of the Australian citizen, Van Tuong Nguyen.

The eye-for-an-eye case rests on horrifying mathematics. Amrozi, Mukhlas and Samudra took 202 live – 88 of them Australians. Ignoring that equation caused serious grief to Labor’s Foreign Affair’s spokeman, Robert McLelland, during last year’s election campaign. He  gave a speech drawing an obvious inference from Labor’s opposition to the death penalty. In government, McLelland said, Labor would lobby Indonesia to spare the lives of the Bali bombers, because comments about the death penalty should be 'consistent with policy.' [more]

The Howard Government leapt on McLelland. So did Kevin Rudd. In stating principle, McLelland had broken the rope-a-dope rule of politics: when your opponent is on the ropes, never stand between him and the canvas. Labor policy would go overboard if it hindered an election win. The result of that flurry is that Australia stood mute waiting for the execution (and, in government, McLelland finds himself serving as Attorney-General).

As with a few other regional issues, Australia learnt some tough lessons about the diplomacy of capital punishment from Mahathir Mohamad. Malaysia executed two Australian drug smugglers – Barlow and Chambers – in 1986. On the day of the hangings, the national conference of the ALP was in session in Hobart. Channelling the emotion of the moment, the Prime Minister, Bob Hawke, denounced the executions during his keynote speech as 'barbaric'. From that moment, the long simmering tensions between Canberra and Kuala Lumpur exploded into full public view and never subsided for the rest of Mahathir’s reign.

Australian diplomats in Southeast Asia have since been careful to delete the bombast from statements of opposition to the death penalty. Australia’s policy would be based on a firm principle with universal application. In talking to the US or to Malaysia, Australia would express its opposition to capital punishment in similar terms. The formula has worked well in seeking clemency for Australian citizens in Vietnam. Obviously, it has been less successful with Singapore and Malaysia.

But the statement of principle now has an exception clause, because sometimes it is not politic to express the principle. This contradiction was well expressed by a member of the ALP Left, Wayne Berry, in what he called his 'retiring murmur' as he left the ACT Legislative Assembly after 19 years of service. The Rudd Government position, he said, 'sets Australia up as hypocrites when they protest about the imposition of the death penalty for Australians involved in particular crimes over there.' The death penalty could never be justified, Berry said: 'When the state conspires to kill somebody, it’s just another obscenity.'

Rudd might take some comfort from the musings of his fellow Queenslander, Bill Hayden, on the balance politicians must strike between practical policies and a deeply ingrained sense of what is morally right. Hayden quotes Niebhur: 'Politics will, to the end of history, be an area where conscience and power meet, where the ethical and coercive factors of human life will interpenetrate and work out their tentative and uneasy compromises.'

Photo by Flickr user peppergrasss, used under a Creative Commons license.


19 Oct 2012 14:55

Two encouraging developments regarding the death penalty have come to light in Indonesia in the past week.

First, it has emerged that President Susilo Bambang Yudhoyono granted clemency to four people on death row for narcotics crimes and reduced their sentences to life imprisonment.

These decisions show a willingness to grant clemency at odds with previous practice and rhetoric. Before these decisions were revealed, there had been only one other known case of clemency for a capital offence in the past 30 years and that was in exceptional circumstances.

As criticism of the clemency decisions mounted, Minister for Law and Human Rights Amir Syamsuddin disclosed that of 128 decisions on clemency for narcotics crimes (not all of which were death penalty cases) President Yudhoyono has granted clemency 19 times. This includes the four death penalty cases, which involve three Indonesians and one foreigner, as well as clemency for 10 juveniles. [fold]

The second encouraging change is increasing acknowledgement by Indonesian cabinet ministers of a link between overseas advocacy for Indonesians facing the death penalty and domestic decisions. 

As I outlined in a Lowy Institute analysis A Key Domino? Indonesia's Death Penalty Politics, Indonesia has energetically advocated for leniency for more than 200 Indonesians facing the death penalty abroad, following the public outcry and intense criticism of the government triggered by the execution of an Indonesian domestic worker in Saudi Arabia in June 2011.

Initiallly, the government resisted a connection between its advocacy for Indonesian prisoners abroad and its domestic death penalty policy in its public statements. The unwillingness to link the foreign and domestic spheres began to change in the face of a public backlash following the five-year reduction in the prison sentence being served by Australian drug convict Schapelle Corby. Responding to this criticism, Syamsuddin cited government advocacy for Indonesians facing heavy sentences abroad, including the death penalty, and expressed the hope that Indonesia would also obtain positive outcomes in its diplomatic efforts for Indonesian citizens imprisoned in Australia.

This time Foreign Minister Marty Natalegawa has joined Syamsuddin in drawing links between the two cases. Natalegawa's comments, made in an inter-ministerial press conference to explain the clemency decisions to the public, were particularly direct. As reported on Republika Online, he said the government had advocated for Indonesians facing the death penalty overseas, regardless of their crime, including the 45% of prisoners facing narcotics cases. Moreover, 42 of the 100 Indonesians he cited as escaping the death penalty had faced narcotics charges in countries as firm as Indonesia in their fight against drugs. 'So, if we discuss narcotics crimes and the granting of clemency domestically,' Republika Online reported the minister saying, 'we also must remember that overseas 45% of Indonesians are facing the death penalty [for narcotics crimes].'

 (Online news portal also reported Natalegawa saying, 'Based on facts, there has been a sharp increase in the [number of] international governments adopting a policy of abolishing the death penalty because it is not consistent with human rights. Indonesia itself is already headed in that direction.' His comments led the site to run the headline: Indonesia Soon to Abolish the Death Penalty. The Foreign Ministry was quick to announce its objection to this interpretation. Another minister present at the press conference also emphasised that the death penalty remained in force and Indonesia would not just follow world trends.]

What do these developments mean for the death penalty in Indonesia and the more than 100 people still on death row there? It is too early to conclude that the government will decide to abolish the death penalty or grant clemency to the remaining prisoners on Indonesia's death row. 

Many public figures have criticised the clemency decisions, including influential figures like members of the central leadership board of Indonesia's largest Islamic organisation Nahdlatul Ulama. The Supreme Court has also attracted criticism recently because its judges have commuted death sentences in specific narcotics cases to prison terms. 

For its part, the government has not made a serious effort to tackle the key arguments put forward by critics of the clemency decisions. Additionally, comments by minister Syamsuddin that the four death row inmates to receive clemency were drug couriers rather than kingpins (gembong) could also mean the government is not yet ready to extend its blanket approach to Indonesians abroad to its domestic death row (he may also simply have been objecting to the press's ubiquitous use of the word 'kingpin').

Nevertheless, the events of the past week have been very encouraging. In my March 2012 Lowy Institute Analysis Paper I characterised Indonesia as being at a crossroads regarding the death penalty, with competing forces advocating greater use of capital punishment and its abolition and cited the imperative to protect citizens abroad as a possible new pragmatic factor encouraging abolition.

With more signs that Indonesia's overseas advocacy is beginning to affect the domestic death penalty debate, I am as optimistic as I have been in years that Indonesia will depart from this crossroads by striding down the abolitionist path.

Photo by Flicr user :Dar.


23 Jan 2015 10:33

Every few years, Southeast Asian countries make headlines for their capital punishment practices, and invariably these headlines come when foreigners are sentenced.

On Thursday, Andrew Chan, an Australian accused of drug trafficking in Indonesia, lost his appeal for presidential clemency. He is one of two Australians (the other, Myuran Sukumaran, lost his appeal in December) who will be executed by firing squad.

Under the new Indonesian president, this year has already seen six convicted drug traffickers executed. Among those executed were citizens from Brazil, Vietnam, The Netherlands, and Nigeria. These executions have, once again, brought Indonesia's death penalty into the international spotlight.

Human Rights Watch has called out Indonesia's double standards. While Indonesia carries out the death penalty on drug traffickers, Jakarta has since 2010 lobbied Saudi Arabia to pardon one of its citizens on death row for murder. With thousands of Southeast Asians working in Saudi Arabia (many often in precarious employment positions), it is not uncommon for migrant labourers to face capital punishment. Most recently, the beheading of a Myanmar citizen in Mecca earlier this month caused uproar when a video circulated of the woman pleading her innocence moments before the sentence was carried out.

The persistent work to highlight such cases, particularly by NGOs like Human Rights Watch and Amnesty, has contributed to gains made in some Southeast Asian countries to abolish the death penalty.

In January last year Myanmar commuted all death sentences to life imprisonment. There have been no known executions in the Myanmar since 1989, nor in Laos since that time. Thailand has not carried out capital punishment since 1988. In effect these states are what Cornell University's Death Penalty Worldwide database describe as 'abolitionist de facto'. The Philippines, East Timor and Cambodia have abolished capital punishment entirely. Brunei hasn't carried out any known executions since 1957 (though with the enactment of the first wave of hudud law last year, that tide may turn).

Yet capital punishment is still practiced in Indonesia, Singapore, Vietnam, and Malaysia. Most controversially, all these countries permit the death penalty for drug trafficking. [fold]

In a mass trial last year, Vietnam's highest court upheld the death sentence for 29 drug traffickers. In 2005, Singapore executed Melbourne man Van Tuong Nguyen for drug trafficking. Most recently, two Singaporeans were executed for the trafficking of pure heroin in July last year. In Malaysia, drug traffickers are among the 900 currently on death row. In Indonesia, of the 133 people on death row in 2012, more than half (71) were there for drug trafficking.

While the influence of powerful religious conservative groups is certainly a factor in the maintenance of capital punishment in Indonesia and Malaysia (just as it is in the US), a more holistic analysis of why the death penalty continues in Southeast Asia must place greater weight on the damage done by narcotics.

The region has a long and troubled history with narcotics. Drug gangs and their huge profits threaten internal security and development. Drug-related diseases such as HIV devastate populations and drug-fueled violence terrorises communities across Southeast Asia. It was against this backdrop that ASEAN set the ambitious (or fanciful) goal of having a drug-free region by 2015. Given recent rates of production, it was a pipedream.

The Golden Triangle still produces a quarter of the world's heroin. According to the UNODC 'almost all the heroin produced in the Southeast Asia is consumed in East Asia and the Pacific'. In 2011 the region consumed 65 tons of pure heroin with a retail sales volume of approximately US$16.3 billion. Crackdowns on heroin production in the Golden Triangle have led to the advent of amphetamine-type stimulants (ATS), which are easier to produce. In the Greater Mekong subregion some 1.4 billion ATS, known locally as yaba, are consumed annually, with an estimated market value of US$6.5 billion.

From the Golden Triangle, narcotics are then trafficked and consumed through the region. That trade will likely become easier at the end of the year when the ASEAN Community is set to introduce freer movement around the region. This in itself could see a push for stricter application of death penalty laws.

For law enforcement, the trade in narcotics has its upside. Extracting bribes from tourists caught taking drugs is big business. For poorly paid police, such bribes can net thousands of dollars (sometimes a year or more worth of pay). The incentives for them to crack down on drugs are therefore skewed. The threat of capital punishment exerts fear on drug offenders and therefore increases the bribes that can be extracted. Drug kingpins are seldom charged, let alone put to death. Rather it is the lowly traffickers and drug users who suffer the most grievous of punishments.

It is perhaps a strange logic, but abolishing the death penalty will go a long way to improving law enforcement and governance in Southeast Asia, thereby diminishing drug trafficking,  which is the ultimate aim of governments that enforce the death penalty.  If the region is serious about tackling drug trafficking it would be wise to abolish the death penalty. Tackling the scourge of drugs in Southeast Asia means tackling the death penalty.

Photo by Flickr user Brian Jeffrey Beggerly.


28 Apr 2015 16:18

As Australians Andrew Chan and Myuran Sukumaran spend what may be their final hours on the prison island of Nusa Kambangan, there is anguished confusion in their home country as to how an Indonesian president elected on a platform of reform could sentence so many to their deaths for so little. Ensuing efforts to explain President Joko Widodo's actions have been incomplete, attributing a malevolence to Jokowi for which there is little evidence.

The broader political context suggests instead that Jokowi is motivated by the zeal of a reformer, albeit one with a very different sense than most Australians of what constitutes reform.

The first key to understanding the presidency of Jokowi is to grasp the degree to which he has sought to define himself in opposition to his predecessor, Susilo Bambang Yudhoyono. President Jokowi has sought to be firmer, more focused, and faster.

Many Indonesians criticised Yudhoyono for pursuing a role as an international statesman, which they argued led him to curry favour by seeking accommodation with foreign powers like Australia. He was faulted for attending too many summits in an effort to build up his reputation while doing too little on behalf of Indonesian migrant workers facing difficult working conditions overseas.

In contrast, President Jokowi is a reluctant attendee at international summits, and has made consular service to Indonesian migrant workers a top priority. He pledged in the presidential campaign last year to better defend Indonesia's dignity, particularly in the case of Australia, which he singled out as a repeat offender. [fold]

There was a sense among many Indonesians that under Yudhoyono's hands-off leadership, the state had become weaker – that corruption had flourished, drug use had soared, and laws had gone unenforced due to political considerations. By contrast, Jokowi promised in his election manifesto to 'reject the weak state' and in doing so extirpate corruption, drug trafficking, illegal fishing, and other scourges. 

While SBY appeared to many Indonesians to be peragu, a vacillator, Jokowi has always appeared to be a man of action. He has sped up infrastructure projects, sped up subsidy reform, and – tragically – sped up executions.

While capital punishment is anathema to most Australians, it enjoys broad support in Indonesia, and the decision to carry out death sentences issued over the last decade represents for most Indonesians a return to the regular order under a president who is unafraid to enforce Indonesian laws even when placed under intense pressure to offer foreigners special dispensation. To most Indonesians, this is reform.

The second key to understanding Indonesian politics today is that Jokowi is in a weaker political position than any Indonesian leader since 2001. With limited support among the elites of Indonesia's political parties, including his own, he must play them off each other if he is to have any hope of enacting a portion of his reform agenda.

In the process, he has compromised, doling out sinecures and largesse in violation of his anti-corruption pledges. He labours under the constant possibility of an elite plot to unseat him, if he would only give his detractors sufficient excuse to move against him.

Some journalists and analysts have argued that, from his weak position, a desperate Jokowi has seized upon the executions of foreigners as one area where he can project strength and score political points. Yet there is little evidence for such an extraordinary accusation. Jokowi's administration began to process the death warrants in November of last year and Jokowi signed the death warrants at the end of December, before a major scandal hit his Administration in the first week of January.

In other words, Jokowi was still on his honeymoon when he committed himself to his current course. It is possible that the politics of Jokowi's situation have held him to that course since then, but such an argument seems to confuse correlation with causation. All indications are that Jokowi has concluded that the executions are just.

It is a conclusion with which I and all opponents of capital punishment profoundly disagree. But as the Australian people and their Government contemplate the appropriate response to the execution of their fellow citizens by the Indonesian state, it is important that we accurately portray the context and mindset in which that decision has been taken.

Photo by Flickr user Kreshna Aditya 2012.


29 Apr 2015 11:23

While Australians are largely united in their sadness at the executions of Andrew Chan and Myuran Sukumaran there is divide over how we should respond.

For many, the over-riding sense is one of helplessness. Prominent voices on the left and right have reacted with anger and want to go beyond withdrawing our ambassador to also punish Indonesia by cutting aid. Others, such as those in the #saveourboys video, seem to think the Australian Government can just snap its fingers and force Jakarta to change.

In the last 24 hours both Foreign Minister Julie Bishop and Opposition Leader Bill Shorten have said Australia should campaign against the death penalty. How might our politicians make meaningful progress to end this practice?

The good news is that there is a long historical record of Australia being influential on the policies of its neighbours. The story of Australia's engagement with the Asia Pacific is as much one of Australia trying to change its region as it is of Australia adapting to it. As I detailed a few weeks ago, there are clear lessons from this history for how Australia could campaign for change in regional thinking about the death penalty.

First we’d need a good argument. But more than that, an argument which appeals to the existing views and concerns of those in the region who support the death penalty. Our concern is to persuade, not simply parade our views. [fold]

Second, we need a platform on which to talk. That might include appointing an Australian ambassador to focus on this issue full time — as we have for counter-terrorism and irregular migration — as well as building coalitions and forums of those who also want to end this practice.

Third, we need to work out a strategy for creating change. Are there key countries which everyone else looks to for leadership? Are there domestic groups we could work with? And how do we ensure our views come across as genuine moral conviction and not a stereotype of the West lecturing the East?

Finally, we need to accept that this is a long, long campaign. Any serious effort will outlast the careers of current members of the Australian parliament. The campaign needs to be based on a united genuine belief and backed by serious resources, as we did with non-proliferation and trade liberalisation.

After surveying 30 years of Australian foreign policy in Asia for my book Winning the Peace, I am optimistic that Australia can have significant influence in regional policies. We should not feel helpless, but nor should we assume influence is easy. The real question is not whether we could campaign for change, but whether we are prepared to do so for not a month or year but for a decade and beyond.

Photo by Flickr user Global Panorama.