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February 25, 2015
Chan & Sukumaran: Should They Die? Perspective From One of Our Young Talented Lawyers

By Christopher Townsend

The death penalty is one of the most controversial sentences that can be imposed, sparking debate globally. Human Rights activists consistently campaign against its imposition, with Amnesty International often at the forefront of the same.

Every day, all over the world, prisoners face execution. Men, women, children are faced with this cruel, inhumane method of punishment that has often been cited as ineffective as a deterrent.

In Australia, by virtue of the Death Penalty Abolition Act 1973, such a punishment cannot be imposed. Further, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010, made it so Australia cannot reintroduce such a penalty. We, as a people, as a community, made our stance clear.

This however, does not stop our people, whilst abroad, from being subject to the laws of a country that does support the imposition of the death penalty. Indonesia is one of them.

Perhaps two of Indonesia’s most currently publicised prisoners, currently residing at the Kerobokan Prison, are that of Andrew Chan and Myuran Sukumaran, two Australian citizens. Well known in Australia, as members of the Bali Nine, in 2005, they were both arrested for attempting to traffic over 8kg of Heroin into Australia.

Notwithstanding the intelligence that originally surfaced in Australia, as to the intentions of Chan and Sukumaran, and notwithstanding that the Australian Federal Police had the opportunity, should they have chosen, to arrest them both upon returning to Australia; the AFP chose to give the intelligence to the Indonesian Police, and subsequently Chan and Sukumaran were sentenced, in February 2006, to death.

Both Chan and Sukumaran are now currently facing the firing squad, having had almost every legal avenue exhausted including but not limited to, a request for clemency from the President Joko Widodo, and that having been rejected, we can now reflect on the past 9 years and really question whether they have been afforded justice, as we know and accept that concept to be.

The ICCPR Treaty

The International Covenant on Civil and Political Rights (ICCPR) is a treaty adopted by the United Nations, in force since 1976, commits parties to respect the right to life, freedom of religion and speech amongst other fundamental rights. Particularly Article 6 of the ICCPR states:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime […]”

Indonesia became a party to this treaty, in February 2006. Australia signed the treaty in 1972, ratifying it in 1980.

Article 28A of the 1945 Constitution of the Republic of Indonesia aligns with such a right in stating:

“Every person shall have the right to live and to defend his/her life and existence”

Around the same time as Chan and Sukumaran received the decision of the Supreme Court of Jakarta (2011) reaffirming their fate, an Indonesian national had been through the same process. Hanky Gunawan, had been found guilty of mass producing the drug ice, having been found in possession of 11kg of the same. He had originally been, at first instance, sentenced to 18 years, however this was increased to the death penalty.

In the same court that reaffirmed Chan and Sukumaran’s penalty, Gunawan remarkably had a much different outcome. His death penalty was reduced to 15 years imprisonment, with Chief Justice Imron Anwari, citing the ICCPR, and the Indonesian Constitution. All 3 judges agreed on this point.

Gunawan’s appeal decision, handed down by the Supreme Court was published as No. 39 of 2011 (More specifically, 39PK/Pid.Sus/2011). Chan and Sukumaran’s appeal decisions were No. 37 and 38 respectively.

One can only wonder, what changed between the decision handed down in July 2011, and the one only a month later in August 2011.

Analysing A Likely Outcome

Ultimately Chan and Sukumaran will likely be executed. For what purpose, remains to be seen. Australia seeks to rehabilitate those convicted, and WA, by virtue of the Prisoners Review Board and the Sentence Administration Act 2003, reviews prisoners with the ultimate goal to return to the community, functioning and rehabilitated citizens.

Had Chan and Sukumaran been imprisoned in Australia, and shown the extent of personal growth and rehabilitation they have in Kerobokan Prison, we as a community, represented by the appropriate authorities would likely deem them fit to re-enter society. Alas, that is not the case in Indonesia.

Australia as a country enjoys transparency in the conduct of judicial proceedings. Other countries are rife with corruption. Acknowledging that in order for justice to be done, it needs to be seen to be done, this principle is something embedded in our criminal justice system, and something that Australia ought to be thankful we adhere to where possible.

Is that any consolation for Chan and Sukumaran, probably not. But we can all learn something from what will likely be their unnecessary deaths.