The Guardian 15 October, 2008
Rudd’s nod to death penalty
Bob Briton & Jules Andrews
The Bali bombers sitting on death row in Indonesia have inadvertently reignited a debate over the death penalty in Australia. When the initial sentence was handed down on August 7, 2003, Prime Minister John Howard went on record saying that they should be dealt with according to Indonesian law and that there wouldn’t be any protest from Australia in the event of their execution. Just two days later then Labor opposition leader Simon Crean backed that sentiment. Last week, Kevin Rudd joined them in saying that they deserved their punishment.
These comments fly in the face of Australia’s undertakings to the international community about the death penalty and have opened up a veritable Pandora’s Box of issues concerning crime and punishment. The main question to be answered is: if the Prime Minister considers the death penalty appropriate punishments for criminals overseas, will the day then come when he considers it appropriate for perpetrators of criminal acts here in Australia?
Past progressive moves
The Communist Party of Australia is opposed to the death penalty in all cases and in all countries.
The last execution in Australia took place in 1967, and capital punishment was abolished as punishment for federal offences by the Whitlam Labor Government in 1973. It was formally abolished across the whole country in 1985 when NSW removed it as a possible punishment for the crimes of treason, piracy and arson of naval dockyards.
On 11 July, 1991, Australia signed the Second Optional Protocol to the International Covenant of Civil and Political Rights that says clearly that the abolition of the death penalty "contributes to [the] enhancement of human dignity and progressive development of human rights." It also says that signatory countries will adopt an "international commitment to abolish the death penalty." Australia annually co-sponsors a resolution to the UN Human Rights Commission that calls for all nations to abolish the death penalty.
All these actions were steps forward to a more progressive stance on this issue, and also reflected the views of the vast majority of the Australian people.
Bob Hawke provoked a diplomatic standoff with Malaysia in 1986 when he protested what he called the "barbaric" execution of two Australians, Kevin Barlow and Brian Chambers. In 2001, Howard said in a doorstop interview that he maintained a "pragmatic opposition to the death penalty that is based on the belief that from time to time the law makes mistakes and you can’t bring somebody back after you’ve executed them." As late as 2002, the then Foreign Minister Alexander Downer criticised Nigeria for its use of the penalty.
"Tough on crime" rhetoric
Some would say that the "War on Terror" has resulted in the hardening of the hearts of our country’s political front men. However, the drift to backwards to the position of a more qualified respect for human rights and human life on the part of government had been coming for some time before 9/11.
State Labor governments have headed into recent elections promising ever-broader measures to impose harsher sentences on offenders and to impinge on the nominal independence of the judiciary to get them.
They promise the building of new jails or to cram more prisoners into existing facilities. "Rack ’em, pack ’em, stack ’em", as SA Treasurer Kevin Foley said infamously. Unsurprisingly then, conservative state Liberal parties in opposition have striven to outdo the ALP’s "tough on crime" undertakings.
Governments have vigorously defended the actions by police officers to deliberately fatally shoot individuals deemed to be a danger to other members of the public. Other options that may have been used under the circumstances have usually been dismissed out-of-hand.
Australia’s descent into state terrorism
Prior to the Sydney Olympic Games in 2000, the Defence Legislation Amendment (aid to Civil Authorities) Bill gave the army the power to "suppress political disturbances" within Australia and furnish them with "shoot to kill" powers.
Of course, the events of September 11, 2001, accelerated the race to the bottom for the erosion of civil and political rights with various pieces of draconian ASIO legislation added to the books.
The spy agency is now a fully-fledged secret police force. Australia’s involvement in the invasions of Iraq and Afghanistan drew our federal government into the US system of "extraordinary rendition" to allow for the torturing of terror suspects. Australian casualties of this policy, Mamdouh Habib and David Hicks may have attracted considerable support from the public concerned about human rights but remained victims of open hostility from the Howard Government.
Mr Habib had been arrested in Pakistan in 2001, spent five months in "rendition camps" in Egypt and Afghanistan before finally being transferred to Camp X-ray military prison at Guantánamo Bay. After four years in detention he was released without charge.
By 2005 and the case of Australian citizen Van Nguyen, who was convicted and sentenced to death for drug-running into Singapore, a lot of the official media grabs referred to the culprit as having known the "possible consequences" of his actions. Howard had taken the same hands off attitude in the case of Schapelle Corby who narrowly escaped the death sentence in Indonesia after her conviction for importing cannabis in the cover of her boogie board.
After a two-year battle, the NSW Council for Civil Liberties last week obtained confidential documents from the federal government under Freedom Of Information laws that "show that the Howard government deliberately set out to undermine Australia’s opposition to the death penalty," as the Council’s media release put it.
Howard gave the green light to the Australian Federal Police to cooperate with their Indonesian counterparts to bring the bombers to justice — or Indonesia’s particularly harsh form of it. The Indonesian president at the time, Megawati Soekarnoputri, had just introduced the death penalty for terrorism so the Australian end was clearly aware it was breaking commitments not to cooperate in cases carrying the death penalty.
Resist the "new standards"
It may be hard to feel a need to respect the legal and human rights of the three convicted Bali bombers as they display their callous disregard in recent media interviews for the suffering and grief they have caused to so many victims, their families and friends. But for the Australian government to exhibit something approaching enthusiasm for the application of the death penalty in their case is unacceptable. Is Indonesian law just in its sentencing in these cases and therefore superior to the process they would have been subjected to in Australia?
If that is the position, surely it is only a matter of time before our penalties for terrorist acts and other outrages against the community are "brought into line" with the brutal standards of our times.
There may be casualties of this dangerous trend at the top. The PM’s stance now makes it difficult to plea for clemency for the "Bali Nine" — the Australians currently sitting on death row in Indonesia following convictions for attempting to import drugs into the country. The Rudd Government deserves credit for releasing the confidential documents showing their predecessors’ betrayal of Australia’s principled stance on the death penalty.
Now it is also incumbent upon them to repair the damage caused to the country’s reputation, come out in clear unequivocal opposition to capital punishment and stop toying with the death penalty.