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The operational matter of sending Australians to their execution

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AFP

Even after Monday’s press conference by the Australian Federal Police, there are a number of unanswered questions hanging over the fate of Andrew Chan and Myuran Sukumaran.

In response to questions about a possible recurrence, we are told that there is still no certainty that something similar could happen again and that the decision was a very 'difficult' one. For a press conference that has been ten years in the making, this is not reassuring.

As it was, while the police explained why they could not have arrested the ring before they left Australia (due to a lack of sufficient evidence), none of them seem to have turned their attention to whether they could have been arrested on their return (laden with drugs and therefore with the evidence of their guilt presumably readily to hand).

Unfortunately, formulating a principled response to the executions has been bedevilled by the fact there has been a lot of xenophobia around the debate with some serious hypocrisy on display (given Australia’s own gaping human rights issues and its silence around its allies’ far more frequent use of the death penalty).

A useful starting point in formulating such a response seems to me to be Australia’s 1992 Extradition Treaty with Indonesia – a document not mentioned in any commentary to date – or by the AFP. Extradition, the international law mirror image of asylum, allows a country to hand over to another country people who are wanted in that country for trial (whether nationals of the requesting country or not). Most nations recognise restraints on extradition – the crime must be serious and criminal in both states, the extradition must not result in double jeopardy (i.e. in a second trial for the same offence) and not be for a 'political' offence.

People must only be tried for the crimes for which they are extradited. All of these are reflected in Australia’s treaty with Indonesia. Crucially for current purposes, it is a general principle of international law (reflected also in Article 7 of the Extradition Treaty) that extradition will not be granted where the death penalty will be imposed for that crime in one state but not the other.

Obviously, the Extradition Treaty is not directly applicable here. The men were arrested by Indonesian authorities and tried for Indonesian offences in an Indonesian court. Nevertheless, the major – if not the sole – reason for their arrest and trial was the action of the Australian Federal Police in contacting their Indonesian counterparts. If extradition treaties regulate the dealings between countries’ executives (governments), it is surely not unreasonable to expect that relations between particular arms of those executives (here their police forces) should operate on similar principles – even before the matter may have come to trial.

While the AFP are clearly right to argue that they need to cooperate with Indonesia – it is, after all, Australia’s biggest neighbour – the police’s understanding of their role seems absolutely extraordinary in the light of the Extradition Treaty.

The implication is that, although Australia is absolutely forbidden from extraditing a person to Indonesia to face the firing squad, the police are entitled (as an 'operational decision' and, if the police are to be believed, with no reference even to Cabinet guidelines) to hand someone over to be executed. This lack of restraint on police action also contrasts with extradition proceedings which, under the Extradition Act 1988, not only have to be permitted under the terms of the relevant treaty but are also reviewed by the Attorney General and the judiciary.

Commissioner Andrew Colvin’s argument against a legal prohibition on referring people to countries where they run the risk of being executed (on the grounds that this would make the police’s job more difficult) also seems misguided. His contention that the legislature should be 'very wary of the impact that would have' smacks suspiciously of endorsing the death penalty as a deterrent for drug smuggling.

If so, that runs perilously close to suggesting that the AFP are quite happy to have the death penalty as a deterrent but don’t want to get their own hands dirty. If that is truly his belief then what are we to make of his earlier statement to the press conference that executing Chan and Sukumaran was 'unnecessary'? All of this inconsistency only lends weight to charges of hypocrisy.



Justin GlynJustin Glyn SJ is a Jesuit presently studying for the priesthood. He has previously practised law in South Africa and New Zealand and has a Ph.D in administrative and international law.

 

Topic tags: Justin Glyn, Bali 9, AFP, national security, Andrew Chan, Myuran Sukumaran

 

 

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Existing comments

An excellent summary of what was missing from the AFP's explanation yesterday - thank you Justin. Andrew Colvin said they had insufficient evidence to arrest the Bali 9 before they left Australia, but the question at issue for ten years is not this, but why the AFP did not wait to arrest them after they arrived back in Australia with drugs strapped to their bodies. This would have been very easy, and the offences would have been against Australian law, quite sufficient to put them behind bars for some time. The AFP well knew of the death penalty in Indonesia, however selectively applied it is. Moreover, I wish they or someone in power would reflect publicly on the fact that the Bali 9 were mules or couriers, and that their bosses in the drug trade have never been discovered. There have been rumours for years that one of these has continued to operate from Sydney for the last ten years. Is this likely to be true? It would not surprise me at all.
Rodney Wetherell | 05 May 2015


Accusing the police of hypocrisy seems over the top. Yet consider the following: the police arrest these people when they return to Australia. They find a lawyer - a person who could never be accused of hypocrisy - and are released to continue their trade. (cf Harun Monis, Adrian Bailey ... the system is biased in favour of the offender). Given their experience, the police can hardly be expected to consider that an offender will be reformed in the way that the Bali two were. There has been too much unanimity on the Australian side in this whole story and I fear Justin's article adds little that is useful.
Frank | 05 May 2015


A simple and very good point is made here. The Australian government rightly refuses extradition of any person to any country where they are at risk of facing the death penalty for their crime yet the police, an arm of that same government, can circumvent this prohibition by making an "operational decision" which exposes a person to the death penalty under the guise of "co-operating" with a foreign government. Never again since Chan and Sukumaran I should think - and in this sense at least their young lives were not forfeited in vain.
John O'Brien | 05 May 2015


At the outset I do not have a view one way or another about the death penalty, something this commentary along with so many others causes to to miss the point, attempt to lay blame with others, whether that be the Indonesian President, The Indonesian Courts or the AFP. The blame clearly lies with the two individuals who were executed for non compliance with the laws of Indonesia in drug smuggling in that Country. Blind freddy knows the supply of drugs is illegal and can have significant consequences which it did in this case. The outcry by Australians for the death penalty for those involved in the Bali Bombings is the hypocrisy given the lectures we gave Indonesia as a Country for this matter. It seems to me that it is easier to blame some one else, rather than take responsibility, I will watch in interest for those who will rise up against China when the Australian male recently charged with trafficking 40 KG of ICE comes up for Trial. Just remember, it is so easy to be the critic.
Michael | 05 May 2015


Extraordinarily argued irrelevancy!!!
john frawley | 05 May 2015


We can only hope that their legacy is a change of heart for those who still hold to the death penalty.
Trish Taylor | 05 May 2015


Thanks, Justin. Well expressed and argued.
Jack | 05 May 2015


Justin Glyn is 100% right in suggesting that the AFP in 2005 let Indonesia do the Howard government's "dirty work" in giving those huge drug sentences to the Bali 9 & directly resulting in the recent execution of the Bali 9's two leaders. The AFP officer in charge at that time, Deputy Commissioner Phelan, now says in the press that he still has qualms of conscience over this AFP operation. PM Howard & Foreign Minister Downer knew these 9 Australian drug smugglers faced a death penalty in Indonesia & they welcomed that in the media as a deterrent to future drug smugglers from Indonesia. PM Abbott's recent indignation in our media & to President Widodo smacks of hypocrisy - he was a senior Minister in the Howard governmet at the time that the AFP gave the Bali 9 tip-off to Jakarta. Also, the Bali 9 COULD have benn arrested on their return to Australia wth the illegal drugs, as Justin Glyn wrote. Only one word describes Mr Abbott's current stance - humbug.
John Cronin, Toowoomba Q | 05 May 2015


Terrific article, very constructive and cuts to the chase - thank you.
Christine Nicholls | 05 May 2015


Alerting Indonesia that these young men were travelling there, knowing that country has the death penalty was plain wrong and should not be allowed. It should be outside the control of the AFP. Thank you, Justin for your sound argument.
Anna | 05 May 2015


Thank you, Justin. Contrary to what some others suggest, the point at issue isn't now the criminality of the two men. It's the role of the AFP, which apparently chooses to ignore the principles underlying the Extradition Treaty, and is supported in doing so. How does it happen that a police force has so much apparent authority to ignore the legislature and the judiciary, who presumably authorize the terms of the treaty? Their operational needs are supreme, it seems, over our principles. What next? Should we all begin to fear our police, if this is the case?
Joan Seymour | 05 May 2015


Fully agree with Michaels comments. Just hope we won't see the PM or the Foreign Minister and or the Opposition leader attending the funerals.
Cypriaan | 05 May 2015


Surely the whole purpose of this international anti-drug cooperation is to destroy its source, the drug barons. Lame as the reason might have been, the AFP was doing its job. Albeit clumsily and without forethoughts of the consequences (of their actions). By executing the drug mules, the Indonesian and Australian authorities had failed to catch the real perpetrators; the said drug barons. All the responsible authorities of both countries were able to prove was that they caught drug mules; a blatant public relation exercise that boosted their reputation. And for that reason, two lives were lost in the most unnecessary manner. We really need to do better than this.
Alex Njoo | 06 May 2015


Thanks Justin - another reasoned argument from you. I agree with Rod Wetherell and have been asking that question ever since the death penalty for Chan and Sukumaran was contested. Two wrongs do not make a right. Why would anyone bother to transform their behaviour whilst in prison if the outcome is still the death penalty? Will the Bali prison/prisoners be any better off because of these 2 deaths? Society had already imposed prison sentences on them both ... they could have continued their good work in prison and helped all of society through their transformational responses to their sentences. Further reflection is required by the AFP ...
mary tehan | 06 May 2015


While the AFP & our complicit Howard government were wrong to give Bali 9 to the Indonesians & so directly cause the Bali 2’s executions, there was and is a ‘resurrection process’ which ultimately saved both Andrew Chan & Myan Sumarkan - as it does for us all during & at the end of our lives here on earth. Most Christians can & do deplore the death penalty. Let us also extend our practical understanding and our care to the many drug victims and families of drug victims here in Australia and elsewhere – they all too often receive a life sentence as well. Never forget that drug addiction and the associated PTSD often suffered by victims & by their family members IS curable with good spiritual & psychological care by their family, friends and us, their neighbours. As Jesus said 2000 years ago & still shows us all daily through His indwelling Spirit – “I am the resurrection & the life – Whoever dies & believes in Me will live & whoever lives & believes in Me will never die.”
John Cronin, Toowoomba Q | 07 May 2015


Michael. Blind Freddy also knows that knowledge of the potential consequences of drug trafficking - whether it be death of lengthy jail terms - isn't going to stop the drug trade. With all the intelligence collecting and undercover investigations, why don't we ever see the people running the drug syndicates being brought to justice. I'm sure the AFP have knowledge about who they are.
AURELIUS | 10 May 2015


The 10 year delay for an explanation is a dead give away of the whole shabby situation, says lots.
franc fife | 06 August 2015


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