Killing people for killing people

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I am honoured to be speaking here at the Neka Museum as part of the Ubud Writers' and Readers' Festival. My co-panelist Colin McDonald QC has brought me here to the Neka Gallery many times to enjoy the art of this high civilisation.

This last week Colin has accompanied me five times to the Bali prison to visit inmates from the Death Tower. May art and literature contribute this day to our reflections on the justice, utility and morality of the death penalty. 

Last Friday was World Day Against the Death Penalty. I was visiting 22 year old Australian citizen Scott Rush in the Kerobokan prison where he is on death row for being a hapless drug mule in a drug bust by Indonesian police in co-operation with the Australian Federal Police. Scott wrote a letter that day to those attending a dinner organised by his parents in Brisbane for Australians Against Capital Punishment:

I'd like to thank you all for all that you are doing for me and the others here at the Death Tower. To all of you who have come to this function I would like to thank you for your caring and showing solidarity by your presence.

There is not much that I can say in my circumstances but I can say this: I'm not a celebrity. I have committed a serious crime but I am reforming myself and want to show you that I am capable of complete reform.

In the Death Tower, Scott shares a cell with a young Nigerian Emmanuel who has none of the support provided to Scott by family, friends and consular services. Scott and Emmanuel have each written to participants at this Festival, and Colin will be sharing with you some of their reflections.

Sunday was the sixth anniversary of the Bali bombings which claimed 202 lives, including 88 Australians. Early morning, the Australian Consulate hosted a memorial service for victims' families.

Made Pastika, the Balinese Governor who as Head of Police led the successful police investigation into the bombings, spoke at the service recalling how the paradise of Bali had been transformed into a living hell. He espoused the common humanity of all, reminding us that the victims were of all religions and none, of many races, of nationalities near and far.

The Indonesian choir sang Advance Australia Fair with conviction and the Ave Maria with reverence, as well as the Indonesian anthem and an Indonesian song.

Many wept as they came forward to place flowers at the foot of the wooden cross which had been erected outside the Consulate immediately after the bombing. All felt deep sympathy for the victims and their families. The media-amplified pleas of some of them that the bombers be executed, and quickly, were understandable.

For me, talk of the death penalty evoked the young, frightened faces of Scott and Emmanuel, as well as the laughing, haughty faces of Amrozi, Mukhlas and Imam Samudra.

I had been troubled by Prime Minister Kevin Rudd's response to the gloating Bali bombers at the end of Ramadan a couple of weeks earlier when he said, '[T]he Bali bombers are cowards and murderers pure and simple, and frankly they can make whatever threats they like. They deserve the justice that we delivered to them.'

I thought the time had come when our national leaders could espouse that justice excludes the death penalty for anyone, no matter what their offence and no matter what their lack of remorse. After all just before Christmas, the new Rudd Government had voted at the UN for a motion urging retentionist States to 'establish a moratorium on executions with a view to abolishing the death penalty'.

Presumably our diplomats were not unmindful of the fate of the Bali bombers when they decided to join the call for an immediate moratorium aimed at eventual abolition of the death penalty.

When Australian citizen Nguyen Tuong Van was facing the death penalty in Singapore back in 2005, Kevin Rudd had told Parliament: '[W]e hold one fundamental human value to be true, and that is the intrinsic dignity of all human life. It is for this reason that we oppose all forms of capital punishment. For our policy to be credible, we must apply it universally. We must be credible in our opposition to capital punishment as a matter of policy wherever it occurs'.

For Scott's sake, for Emmanuel's sake, and for the sake of the community of nations working towards a moratorium on the death penalty, this should be Australia's position. Withholding none of the sympathy I felt all around me at the Consulate last Sunday morning, I think Australia is ready to be led and to lead others down a more humane path, away from the death penalty.

Some of us have been waiting a long time for this lead. I have been waiting since I was 12 years old at a Queensland country boarding school.

It was 3 February 1967. Breakfast started at 7.45am. The din of 300 boys at table was always deafening once the supervising priest declared, 'Deo Gratias'. For the first and only time in my five years at the school, a handful of senior boys called for a minute's silence at 8am to mark the hanging of Ronald Ryan in Melbourne Jail. As Ryan dropped, you could hear a pin drop in faraway Toowoomba.

The recollection still brings goose bumps. This was wrong. It should never happen again. How could a nation do this? All Australian jurisdictions then abolished the death penalty, and now our government has joined the call for an international moratorium.

In 1995, I was working in a Sudanese refugee camp on the Uganda border. At night I would sit in my tent listening to the BBC World Service on the short wave radio. One night I heard the announcement that the South African Constitutional Court had ruled the death penalty unconstitutional. The lead judgment had been written by the president of the court, Arthur Chaskalson. We had shared the platform at the opening of the Commonwealth Legal Convention in New Zealand a couple of years before.

When returning to Australia via Johannesburg I met Arthur and he proudly gave me a copy of the judgment. He had quoted liberally from the dissenting jurisprudence of Justices Brennan and Thurgood Marshall on the US Supreme Court.

I happened to be on my way to Georgetown Law School on a Fulbright where I had the good fortune to meet regularly with my namesake Justice Brennan who, though retired, still came into chambers. Over lunch one day, I gave him my copy of Chaskalson's judgment. Tears welled up in his eyes as he realised that some of his most sterile and consistent dissent writing had born fruit on the other side of the globe.

There is always point in standing up for principle even when the view expressed is unpopular and a minority view. Like Justices Chaskalson and Brennan, Prime Minister Rudd is well positioned to contribute to the abolition of the death penalty. None of us should ever again have to look into the eyes of Scott and Emmanuel returning to the Death Tower.

Coming from the Judaeo-Christian tradition I acknowledge that religious teaching on the death penalty has not always been abolitionist. I do claim that the developments in our religious thinking are keeping pace with the developments in international law and in best international practice on the death penalty. Abolition of the death penalty is the only way to go. But we are not there yet.

The Mosaic Law specifies 36 offences which carry the death penalty with provision for execution by a variety of means: stoning, burning, decapitation and strangulation.

Jesus accepted that the State may impose capital punishment; he himself was subject to such penalty, without his questioning the right of the State to impose such punishment.

Early Church Fathers like Augustine saw no conflict between the divine law prohibiting killing and the State exercising the prerogative to execute the criminal 'according to law or the rule of natural justice'.

When the 1992 Catholic Catechism promoted by Pope John Paul II was first published, it stated: 'The traditional teaching of the church has acknowledged as well founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime not excluding, in cases of extreme gravity, the death penalty.'

Despite the enthusiasm of some conservative and influential Catholics in the United States, Pope John Paul II before his death approved changes to the Catholic Catechism in 1997 stating:

Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and are more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm — without definitely taking away from him the possibility of redeeming himself the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically non-existent'.

 

This principled stance should have broad appeal in all our societies and not just to Catholics, not just to Christians. Sr Helen Prejean whose advocacy against the death penalty was internationalised with the movie Dead Man Walking was instrumental in having the Pope change his mind on the death penalty. She says:

In his visit to St. Louis in January 1999, Pope John Paul II, for the first time ever, positioned the death penalty as a 'life issue' alongside abortion, euthanasia, and physician-assisted suicide. Calling the death penalty 'cruel and unnecessary,' the pope called on people to work for its abolition. In his previous four visits to the United States, the pope had never mentioned the death penalty.

Polls show that, in fact, Catholics and most Christians support the death penalty in roughly equal proportion to other pro-capital punishment Americans. Most people who call themselves 'pro-life' seem to mean pro innocent life. Most feel that those guilty of heinous crimes lose their right to life and should be executed.

Cardinal Avery Dulles was right when he claimed in a 2001 essay for the conservative journal First Things, 'The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty.' Dulles went on to say, 'The pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like (the US), the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position.'

Even if the death penalty were still arguably just in some circumstances, Dulles was conceding that it no longer had utility on the considered opinion of the leaders of his and my religious tradition.

This development in a major religious tradition tracks well the development at the United Nations with a resolution calling for 'a moratorium on the death penalty' having been passed by the General Assembly on 18 December 2007 by a vote of 104 in favour to 54 against, with 29 abstentions.

Admittedly in our part of the world, most Member States did vote against the resolution. But that is not the global trend. Voting against the resolution, the Singapore delegation noted the 'each State had a sovereign right to choose its own political, criminal and judicial systems', stressing that Singapore would continue to follow its own course in the matter.

In July, Helen Clark, the New Zealand Prime Minister, was asked about the pending execution of the three Bali bombers. She replied: 'The New Zealand Government does not support the death penalty under any circumstances. Clearly these men are guilty of heinous crimes and those crimes, in any jurisdiction, would justify them (getting) very serious penalties available under law but the New Zealand Government will not and does not support the death penalty.'

As an Australian I would welcome Kevin Rudd and his ministers saying the same thing on our behalf.

As well as the Bali bombers, there are at present three young Australians on death row here in Indonesia. Other Australians in the drug trade will face a similar fate. For their sake, we need to put a consistent position on the death penalty now.

It would, of course, be crass and illogical to distinguish those on death row according to their nationality or ethnicity. Some people and states who support the death penalty would distinguish murderous terrorists from other criminals such as drug mules.

But we Australians have long articulated a universal ban on capital punishment at home. In dialogue with Indonesia, we do not need to apologise for our universal argument against capital punishment. Anything more nuanced will not help those like Scott Rush who could face a firing squad for being stupid drug mules.

Kevin Rudd has said: 'In the case of foreign terrorists we are not in the business of intervening on any of their behalfs.' It is always a question of prudential statesmanship when to intervene in the domestic affairs of other countries. But even when a decision is taken not to intervene to protect the human rights of foreign nationals in another country, a responsible Australian government can still express its view on the appropriate universal values that we espouse in season and out of season.

On the eve of the fifth anniversary of the Bali bombing during last year's Australian election, the now Attorney-General Robert McClelland received a pasting from politicians on both sides of the political fence because he stated unequivocally the Labor Party's universal opposition to capital punishment.

Peter Costello said: 'Let's have some sympathy for the 88 dead and their families, rather than sympathy for those who cruelly and cold-bloodedly decided to kill them for no reason, other than they were Australians.' We can still have and show sympathy for the deceased victims and their families while maintaining a principled stand against capital punishment.

Those of us with sympathy for Scott Rush and his parents, Christine and Lee, can see why it is not only principled but also sensible for the Australian Government to state a constant philosophical position on capital punishment even if it decides to intervene in foreign countries only when one of our own is on death row. It will be a tragedy, and not just for Scott Rush and other Australians facing death row, if Australian politicians welcome or endorse the execution of the Bali bombers.

Not to intervene at all while consistently stating one's principles is defensible. To seek or endorse the death penalty for some but not for others when those others happen to be our own will be labeled rank hypocrisy on the streets of Jakarta.

Scott Rush does not deserve to die. He did not commit the worst of offences. He has been arbitrarily singled out for the death sentence by the Indonesian courts with his three accomplice drug mules having been given life sentences or 20 years' imprisonment.

His criminal act, if successfully executed, would have caused direct harm in Australia rather than in Indonesia. Australian courts would probably have imposed a 10-year sentence with a minimum of five years to serve. Responding to the pending executions of the Bali bombers, the Australian Government should not say or do anything that could jeopardise any attempts to save Rush's life.

Rush's execution would be not only bad news for him, his loved ones and other hapless Australian drug mules. His death would unreasonably hamper Australian law enforcement officers cooperating with Indonesian authorities in busting future drug rings attempting to move drugs from Indonesia to Australia.

Or else it would place Australian law enforcement officers in the invidious position of routinely handing Australian drug mules over to death regardless of our principled opposition to the death penalty.

Killing our impressionable young drug mules, even at Indonesian hands, is too high a price for Australia to pay in combating the importation of illegal drugs. We can co-operate closely in defeating drug smuggling if the Indonesians respect our opposition to the death penalty, especially for what ought to be non-capital offences.

While we contemplate the deaths of the Bali bombers, we need to have an eye to sparing the lives of Scott Rush and all those sentenced to death by the state when there are non-lethal means available to protect us from their past or future wrongdoings.

Kevin Rudd could say, 'It is not our place to intervene publicly when the Indonesians or even when the Americans decide to execute their own. We Australians believe that capital punishment is wrong. We will always agitate to spare our own from capital punishment, especially when they are convicted of offences deserving less than maximum punishment.'

While extending our sympathy to the victims and their loved ones when the Bali bombers are executed, our politicians can still affirm our principled opposition to the death penalty. If they cannot, they must refrain from comment that undermines it.

Those of us participating in a writers festival with the theme Tri Hit Karana: God Humanity Nature should write, hope, pray and work to do what we can to spare the lives of Scott Rush and all those sentenced to death by the State when there are non-lethal means available to protect us from their past or future wrongdoings, whatever they may be, whatever they could be.

We should also feel deep regret when the bullets pierce the hearts of Amrozi, Mukhlas and Imam Samudra, when the State gives them the martyrs' deaths they sought. We can feel the deepest sympathy for their victims and the victims' relatives while hoping for a world order in which no State kills in cold blood. Being neither just nor useful, the death penalty has become immoral. Justice must not kill.


The above text comes from Frank Brennan's Bali Reflections on the Death Penalty, session on 'Killing People for Killing People', Ubud Writers Festival, Neka Museum, Ubud, Bali, Indonesia, 17 October 2008.

Topic tags: frank brennan, death penalty, bali, bali bombers, bali nine, scott rush, pro-life

 

 

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Existing comments

Anti death penalty folks ask:

"Why do we kill people to show that killing people is wrong?"

We don't.

Even with no sanction, most folks know that committing murder is wrong.

We execute guilty murderers who have murdered innocent people.

For those who don't know the differrence between crime and punishment, guilty murderers and their innocent vicitms, this may be confusing.

For the rest of us, it is easy to understand.

The moral confusion exists when people blindly accept the amoral or immoral position that all killing is equal.

For those who believe all killing is morally equivalent, they would equate the slaughter of 6 million innocent Jews with the execution of those guilty murderers committing that slaughter. They would also equate the rape and murder of children with the execution of the rapist/murderer.

Fortunately, most folks really do know the difference.

Dudley Sharp, Justice Matters
Dudley Sharp | 18 October 2008


For those who understand the meaning of "killing is wrong" there is no need to explain. For those who do not understand the meaning, there is no explanation.

Killing is wrong, no matter who is doing the killing!

Fortunately most decent folks around the world, really do know the true meaning!



Australian Coalition Against Death Penalty (ACADP) | 19 October 2008


Let's remember that Australia's 2007 signing on to the UN call for an immediate moratorium on the death penalty in all countries is consistent with our earlier stand in 1991 when we ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, “aiming at the abolition of the death penalty” to quote its formal title. Parties signing up to that protocol state that they believe “that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights” and that they are “convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life” and that they are “desirous to undertake hereby an international commitment to abolish the death penalty”.
Frank Brennan SJ | 21 October 2008


I hope the Rudd Labor Government endorses efforts to seek a commutation of death sentences in Bali. To promote a consistent ethic for life we might start with the death sentences for the Bali Bombers, so long as these young Australians are protected from execution also.

Now is the time to promote a culture of peace as an Indonesian General Election issue. What about an advertisement in the Jakarta News, worded to express Australian individuals' support for Indonesians against judicial killing, in the name of underwriting human rights in an era that will create many excuses for violence by state and non-state actors.
Alistair | 23 October 2008


These men committed an obscene, appalling and premeditated assault against innocent people. They consigned 200 people to torture and death. Any person, however, who condones, supports or calls for their pre-announced, highly ritualised, scheduled and brutally extended execution, renders themselves every bit as revolting, brutal and sinful as these men themselves are.

The bottom line for a Christian culture, which Australia consistently claims to be; and for all of us individually as Christian human beings, is that we follow an executed man who showed us the way forward not through Revenge-based Justice but through Forgiveness and Compassion for our enemies.

Not all of us are Christian ... and I neither seek to convince or convert those who are not ... but for those of us who claim to be ... this is 'push comes to shove' time when you stand up for the The Truth, whether it is popular or not or you become complicit.

I appeal for the the commutation of the Bali Bomber's sentences from execution to life long imprisonment; on the grounds that capital punishment in all cases, in all countries, at all times is an aberration that offends our highest principles and degrades all who support or enact it.
Pat Drummond | 29 October 2008


What if we killed the wrong person?

Could you imagine being in a jury and convicting someone and they were sentenced to death and then later discovering he/she was actually innocent?

How could you explain that to the victim's family?

The weight this would have on your own conscience and the impact this would have is devastating. And no matter how much you may think, oh that wouldn't happen in Australia ... it could and i bet it would.

Humans make mistakes, it is how we learn, would you be willing to learn like this?
Trilby | 29 October 2008


Sorry, but I do not have any compassion for these people. They knew exactly what they were doing, they killed innocent people, a lot and if they are aloud to live,they will get out eventually so- how many more do they intend to kill?(had heaps of time to think about it) There has become something really wrong in this world when there seems to be all these people protecting the perpetrators and no one thinking of the victims!
Tessa | 05 November 2008


There is something basically wrong in our view of this problem, when we say, you must think about the victims implying, that one should not think about the perpetrators. My understanding is, that we must not judge unless we want to be subjected to judgement ourselves. In our faith, there is no place for revenge. Mine is the revenge, says the Lord, I was told. Punishment is for keeping people from committing further crimes and also serves as a warning to other potential criminals. As studies show, the death penalty does not reduce the crime rate and should therefore be avoided unless there is really no other way, such as in extreme situations, to control recurrence.
Klaus moll | 31 December 2008


A lot of people think that Amrozi and the others were stitched up.

I even wonder if Corby, and the bali nine, were set up, following this as some kind of 'diplomatic' gesture to appease the barbarian press in Australia

a worst case scenario would be that the Brazilian man in london was shot, to send the message that 'of course we did not know about the bombing in advance, we were genuinely looking for bombers when we shot him'.
cronos | 16 July 2009


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