THERE are few Australians who could be left unmoved by the
plight of Andrew Chan and Myuran Sukumaran, their families and
Irrespective of which side of the capital punishment debate one
stands, the human context of what is playing out in Bali is both
sobering and tragic.
As it has done in the past, the condemning to death of
Australians in foreign countries has brought into sharp focus our
consideration of the role of punishment within the judicial
There is no doubt that these two men planned and perpetrated a
serious crime in which they convinced other young Australians to
participate and which, if it had been successful, would have
resulted in further suffering in Australia for those addicted to
the heroin being trafficked.
They would have stood to make a large amount of money if their
crime had gone undetected.
That Indonesia, a sovereign nation, has imposed through its
judicial system a punishment it has determined appropriate to the
crime committed, must be respected.
The Constitutional Court has determined on at least two
occasions that the death penalty should apply for certain crimes in
For Australia to suggest that it should not apply in a sovereign
nation is problematic, especially when it is remembered that many
Australians supported the death penalty being imposed against those
convicted of the Bali bombings.
Yet what must be questioned, robustly and impartially, is
whether those laws have been correctly interpreted and the
decisions of various courts objectively and fully implemented.
It is apparent that there exists some serious disquiet from
within the country's senior judiciary as to whether the rulings
of the Constitutional Court have been observed in the cases of Chan
Indonesia's former Chief Justice of the Constitutional Court,
Dr Jimmy Asshiddiqie, who it must be pointed out cast the deciding
vote in rejecting a 2007 appeal from both men, has now expressed
the view that Indonesia's retention of the death penalty is
seriously out of step with international human rights.
Even more significantly, he says the Constitutional Court has
ruled that prisoners who have been on death row for 10 years and
who have demonstrated reform and rehabilitation, should have their
sentences commuted to imprisonment.
What appears to be now beyond any reasonable doubt is that both
Chan and Sukumaran have not only accepted the seriousness of their
crime and demonstrated genuine remorse, they have also achieved
real rehabilitation in turning their lives around in circumstances
few of us will ever understand.
For anyone with the remotest exposure to the criminal justice
system in any country, there is a broad understanding that
rehabilitation is the best outcome that can come from any
For the guilty party to acknowledge their wrong and to turn
their life around in service of the community they once offended
against is rare and should be recognised.
It should not be forgotten that other than being the possible
source of the original drugs, the Indonesian drug community would
not have been harmed by the supply of this drug, as the intended
recipients were Australian drug users.
Drugs and the trafficking of drugs in South-East Asia is a major
problem. No Australian travelling to South-East Asia can suggest
that they are not aware that harsh penalties apply, including the
death sentence, for the trafficking and possession of drugs.
As Chan and Sukumaran's legal team continue their efforts
for administrative review of the President's decision not to
grant clemency, there continues the tension between the Supreme
Court and the Constitutional Court as to how they should be dealt
The Indonesian President, Joko Widodo, was elected on a platform
of being tough on crime. For him to bow to international pressure
and grant clemency to Chan and Sukumaran may be seen by some in
Indonesia as contrary to his pre-election commitments.
There is however, the ability for the President to indicate that
the question of whether the death penalty can be commuted to life
imprisonment in cases such as Chan and Sukumaran be once again
determined by the Constitutional Court. By indicating that such an
application could be made, despite precedent to date suggesting
applications to the Constitutional Court cannot be made where it
has previously provided a ruling for offenders, an opportunity
could exist for Chan and Sukumaran to avoid the death penalty.
With fresh evidence of their rehabilitation being available the
grounds for such a further review could be well made out. To allow
such an application would remove pressure from the President and
confirm that Indonesia is indeed a country that is subject to the
rule of law as an emerging democracy within South-East Asia.
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