Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

On why the AFP is not to blame for the Bali 9’s death penalty

In 2005, nine Australians — the ‘Bali 9’ — were arrested in Indonesia for smuggling 8.3kg of heroin.  The two ringleaders, Andrew Chan and Myuran Sukumaran, were sentenced to death by firing squad.  Following various appeals and developments, Indonesian authorities announced that the two would be executed this month.

Over on the now defunct AusOpinion group blog, I once argued that Australian opposition to the death penalty in Southeast Asia and the Pacific seems only to exist when it affects Australian interests.  But Indonesia appears to hold a special place in the imaginations of Australians: a place where, somehow, Australians are supposed to be free from ordinary consequences of actions.  Indonesia is treated like a playground for Australians, somewhere to go for cheap holidays.

So when Australians do face the consequences of their actions, the public has developed a habit of going completely batshit crazy.

A month after the arrest of the Bali 9, Schapelle Corby was arrested for smuggling 4.3kg of weed into Indonesia.  Supporters of Corby make a series of wild allegations against everybody and anybody — up to and including former Minister for Foreign Affairs, Alexander Downer — of a conspiracy to frame Corby.  Journalists who explored the Corby family and didn’t support the tinfoil hat version of events have faced defamation suits, while a cohort of Corby supporters sit on Twitter doing nothing but threatening people who dare to suggest that she’s probably guilty.

Supporters of Chan and Sukumaran are quickly going down the same path.  A poll was published by the Australian national broadcaster on Triple J radio revealing that Australian support for death penalty for drug smugglers was pretty much evenly split.  This led to people as august as the Vice Chancellor of the Australian Catholic University, Greg Craven, stating that Triple J was somehow partly responsible for their deaths:

If these two men really are executed then the radio station that commissioned the poll, the people who delivered that poll, and the people who answered that poll in the affirmative will know that they have had a part, no matter how small, in the death of two other people. [Source]

Others have gone down the Corby-esque route of blaming Australian authorities.  In The Saturday Paper, Jo Lenan pushed the case that the Australian Federal Police are responsible for their deaths because they tipped off Indonesian authorities about the smuggling venture.  Under the subline ‘they would not be on death row if it were not for the actions of the federal police’, Lenan writes:

Chan and Sukumaran wait in Kerobokan prison for their now inevitable deaths, victims of a system that has favoured regional co-operation in policing over two human lives. [Source]

It is unusual to read such blatant rejections of the rule of law in the left wing press.  If Australian authorities do not believe an Australian should be punished for their crimes, they should withhold the information?  Is that really the path we want to take?  Does it work the other way: if Indonesian authorities decide that they don’t think Indonesians should be punished for illegal fishing or people smuggling, should they withhold information from Australian authorities?

The key factor in the debate is the use of the death penalty.  It is no secret that I support the death penalty, but I think it’s excessive for drug smuggling (because I also think the more barbaric life imprisonment is also excessive).  The argument made by supporters of Chan and Sukumaran is that, because the death penalty is involved and we all oppose the death penalty, we are entitled to interfere with the legal systems of less developed countries.  The first priority should be preserving life, even if that means bringing back old colonial attitudes about how non-Western countries can’t govern themselves.

The argument is nonsensical and clearly immoral.  If there is a crime and we know of it, we have a duty to report it.  There is an analytical gap between whether or not some act should be a crime and whether or not a particular punishment is an appropriate response.  Advocates have claimed that, because we feel the punishment is inappropriate, we should conceal the crime: Australia should knowingly and willfully become an abettor to the crime.

Supporters of Chan and Sukumaran are unwilling to hold them responsible for their own fate.  They thought the risk of being caught and punished was worth smuggling $4m worth of heroin.  People who tipped off the Indonesian authorities are not responsible for the outcome.  People who published polls about Australian opinion towards the death penalty are not responsible for the outcome.  Chan and Sukumaran are responsible.

We can — and should — oppose the use of the death penalty for drug trafficking offences.  Australia should even go so far as assisting regional neighbours by providing funding for alternative methods of punishment.  But we should not go down the path of arguing that Australia has a right and obligation to subvert the legal systems of other countries.

12 responses to “On why the AFP is not to blame for the Bali 9’s death penalty”

  1. There is the small matter that the AFP had the option to arrest the men before they left Australia.

  2. How are you any better than anyone else when you’re sitting here judging the death penalty as being “excessive” for drug smuggling?? And the rich neighbour can provide funding for alternative punishments??? Don’t make me laugh.

    Countries in SE Asia are tough on drugs because it’s a crime that leads to many other societal problems (violence etc etc). I am all for it. Drug smugglers and dealers thumb their nose at the law and continue to roll in their drug money at the expense of others. The more of them we stamp out, the better. And we should stamp on them as loudly and as violently as we can (because they certainly don’t show any mercy or courtesy to others).

    The “they’re good kids” rot on TV is just sickening. They’re heroin dealers. This isn’t a couple of kids trialling a joint on holidays, they’re serious drug dealers. Farewell I say. Won’t see a tear from me and the left (and right so it seems if you’re anything to go by) should pull their heads in and find something worthier to worry about.

  3. I think you mean a month later Schapelle Corby was convicted – I am pretty sure the Bali 9 arrest happened during the media circus preceding Corby’s sentencing.

    Corby was arrested 8 October 2004, Bali 9 were arrested 17 April 2005, Corby was sentenced 27 May 2005. (wikipedia)

  4. […] As discussed before, I’m against the use of the death penalty for the two Bali 9 drug smugglers in Indonesia despite being in favour of the death penalty.  My argument there didn’t engage any discussion about the moral quality of the death penalty; my position was simply that drug smuggling didn’t warrant permanent removal from society (an assertion that I didn’t really bother to argue). […]

  5. Australia has (along with most non-capital-punishment countries) an official policy of only extraditing people to capital punishment countries for criminal offences that carry the death penalty if the government of that country first agrees to formally rule out the death penalty for that person.

    Do you think that policy is wrong? If not, what’s the difference?

  6. I don’t think the policy is wrong. The distinguishing factor is that extradition is actually a part of domestic punishment, while reporting a likely crime is not.

    To what extent a State can legitimately prevent its citizens from committing crimes is a really difficult question. People claiming that the smugglers should have been intercepted assume that the State both had enough information to intercept and had the authority to prevent them from going about their business. We generally hold the view that the State can only interfere with a person once they’ve actually committed a crime.

    With extradition, the State is part of the punishment process. It’s a conceptually different space where the State is clearly justified in engaging but also adopts responsibility for the protection of the person involved.

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