Execution and Indonesia’s justice system

Execution and Indonesia’s justice system Michael O’Connell SC  ;  A Senior Criminal Law Barrister; With other Melbourne Barristers and Solicitors, He is part of A Team representing Andrew Chan and Myuran Sukumaran

JAKARTA POST, 25 Maret 2013

  

Adami Wilson’s execution on March 15, is a timely reminder that the death penalty remains part of Indonesia’s rule of law landscape. Much of the reportage of Wilson’s execution highlighted his continuing criminality in jail. The message is none too subtle — “He deserved to die”.  It may well be that for more and more Indonesians that message misses the point. It is not a question of whether he deserved to die, but rather whether he needed to. Is killing power how, in a modern Indonesia, respect for the rule of law should be upheld, or is there a better way? The Indonesian government’s efforts to save its nationals on death row in places like Saudi Arabia or Malaysia has been applauded internationally. Those efforts sit well with the unmistakable momentum worldwide to abolish the death penalty.  When the government helps its nationals facing execution, it does so without judging whether they deserve to die. The criteria for diplomatic assistance is whether it is needed, not whether it is deserved.  The situation should be no different at home. We can always emphasize the heinous nature of a person’s crime, and their continuing lack of remorse, to justify executing them. That appears to be what happened in Wilson’s case.  But it was not necessary to kill Wilson. Killing him was to engage in the very kind of conduct that we abhor and want to prevent. It demeans us all. All sorts of people do terrible things but killing them may very well diminish what is being achieved in building respect for the rule of law. Indonesia has come a long way since the New Order. Wilson’s execution is a reminder that there is still a long way to go. Presently, Indonesian law permits applications by death row inmates for clemency. In the case of each application the President will effectively decide if the applicant deserves to die.  A case in point is the two remaining members of the “Bali Nine”, Andrew Chan and Myuran Sukumaran on death row in Denpasar. They recently submitted their clemency applications to the President, who will now determine whether they deserve to die. They were part of a group that attempted to smuggle heroin from Bali to Australia. Whilst their crimes were reprehensible, in the 8 years since they were caught at Ngurah Rai airport they have changed enormously. Over a period of time they came to acknowledge the wrongfulness of what they had done and the damage that it potentially caused to Bali’s reputation as a holiday destination.  They are adapting to their circumstances by learning to speak Indonesian fluently and supporting those coming into the prison, helping them to adjust. Over time their efforts expanded to encompass setting up a computer training project. They taught inmates skills such as word processing, graphic design and they made submissions to overseas NGO’s and church groups to provide funding for properly qualified teachers in areas such as computers, English, first aid and philosophy. Myuran Sukumaran’s interest in art has led him to collaborate with locally and internationally renowned artists who have come into the jail to provide lessons and inspiration to many prisoners who would never have such opportunities. Andrew Chan’s work within his Christian Church has equally reached out to fellow Christians who have needed spiritual guidance.  In short, the strength of their rehabilitation is extraordinary. For years, prison officials have commented on the positive difference they have made to life at Kerobokan. The last governor of the prison gave glowing evidence along those lines, before the District Court in Denpasar as part of a judicial review, in 2010. So, when the President comes to consider Chan and Sukumaran’s clemency applications, it is hoped that he might conclude that they do not deserve to die. We value remorse because we value our humanity. We value rehabilitation as one of the ideals integral to the rule of law. It doesn’t make much sense to kill what we value. Unfortunately the same cannot be said of many others on death row. There are many awaiting execution in Indonesia who have committed heinous crimes but cannot claim to have the sort of rehabilitation that Chan and Sukumaran can rely upon. They might well fail the deserve to die test. With Adami Wilson’s death, their prospects of remaining alive just went down.  In reality, none of the inmates who remain on death row in Indonesia need to die. They can be contained and punished severely by having that most precious of commodities — their liberty — taken from them, if need be, for the rest of their lives.  Even if Adami Wilson did all of the terrible things reported, he did not need to die. It was a mistake to kill him. It would be a mistake to go on and kill those inmates in the same position. Maintenance of the rule of law and respect for the rule of law go hand in hand. There will never be the sort of respect that is otherwise well deserved, until Indonesia abolishes the death penalty. The shift in thinking in recent years toward abolition is becoming irresistible. It seems only fitting that a modern Indonesia should play a leading role in ending the death penalty in Southeast Asia. ●