Well, This Is What I Think

A few weeks back, Indonesia executed five “drug mules”, including a woman. Executions in Indonesia are customarily carried out by firing squad and that was the case here.

The executions reflect the “tough on drugs” stance of the new Indonesian President. Of particular interest to Australians is that two citizens (members of the so-called “Bali 9”) who intended to import heroin to Australia are also scheduled to be executed together soon, despite having very obviously become rehabilitated while in prison in Bali, to the extent that the Governor of their prison has argued they should not be executed. A final appeal has been refused, and the executions could occur any day now, at 72 hours notice to the condemned.

The appeal was based on the simple argument that the two individuals, Andrew Chan and Myuran Sukumaran, have been thoroughly rehabilitated in the ten years they have been in jail. Chan is training for the priesthood and does fine work helping fellow prisoners in his Bali jail. Sukumaran has developed into a fine artist and teaches painting to his fellow prisoners. Neither pose any threat to society. Executing them is entirely a matter of revenge, or internal Indonesian politics.

The two have now apparently penned a desperate letter from death row, begging the Indonesian government to spare them as they run out of options to avoid the firing squad, planned for the next two weeks.

Their friend, Pastor Matius Arif, says the pair are ‘very sad’ their bid for a judicial review was rejected in the courts on Wednesday.

He read an open letter – handwritten by Sukumaran and addressed to the Indonesian government, signed by both Australians – to reporters outside Kerobokan jail on Thursday. It argues they are more useful alive as they work to rehabilitate other prisoners.

‘We beg for moratorium so we can have chance to serve Indonesia community (sic)’ the letter says.

Mr Matius said: ‘There’s so many testimonies about what they’re doing inside. I also personally request the government to make a special commission or a special team to investigate what they’re doing inside.’

The team should then report on the rehab programs to the president, he said.

The application for a judicial review detailed the work of Chan, 31, and Sukumaran, 33, to assist others through chaplaincy and art programs.

Denpasar District Court determined it didn’t meet the ‘new evidence’ criteria for a review.

It was the last legal option for the pair, who have been denied clemency by President Joko Widodo.

Barrister Julian McMahon says their team is still examining the options after Wednesday’s setback.

‘At the moment our Indonesian lawyers are reviewing the decision made yesterday which was called a stipulation, which prevented us from proceeding with that appeal, and obviously while any legal options that have value remain open we will pursue them’ he told Sky News.

Prime Minister Tony Abbott, too, says diplomatic efforts to save them are continuing.

‘We are not going to engage in last-minute, megaphone diplomacy but I just want to assure people that the Australian government has left no stone unturned to try to ensure that these two Australians on death row have their sentences commuted,’ he said.

The men’s families visited Kerobokan jail again on Thursday, with Sukumaran’s brother Chintu wrapping his arm around their mother Raji.

In any event, in our opinion, using the death penalty to fight drug usage is unhelpful.

The “purely” legal arguments

Firstly, the act goes against a number of international law standards (to which Indonesia is a party) which argue that drug trafficking does not meet the standard of exceptionally severe crimes that warrant the imposition of the death penalty. Despite widespread support for the death penalty for drug crime in Indonesia, this point has been made in an opinion piece in the Jakarta Times last month. (An impressive example of how far this once authoritarian society has come in recent years.) Typically, such crimes include the death of another person – murder. Whilst many would argue that drug trafficking can contribute to the deaths of the eventual drug users, a straight line cannot be drawn between the act of drug trafficking and any individual death.

Secondly, for a dug criminal to be captured it follows that their drugs were interdicted. As the drugs never reached their target market, no one was harmed. One cannot execute someone for the possibility of having caused harm had the drugs got through.

The social arguments

Drug mules are often individuals who suffer from addiction themselves, and are vulnerable individuals who are desperate for money to feed their own habits. Whilst this is regrettable, it has a lower level of criminal culpability than those, for example, who manufacture the drugs or mastermind their distribution. What’s more, their own drug addiction should be viewed as a health issue: a matter for treatment, not punishment.

The real drug kingpins almost never appear in court. Too many cut outs exist between them and their mules. That they are allowed to go free (often protected by substantial political and judicial influence achieved through bribery with the very money generated by their own mules) is detestable. We cannot have one law for the rich and one for the poor.

Similarly, if they are ever ensnared in the judicial system, they can use their power to avoid severe punishment, an opportunity not available to their workers. For law to contribute to a more just society, it must be levied justly and equally or society itself becomes corrupted.

Last but by no means least, there is no evidence that the death penalty provides a deterrent against drug trafficking. Convictions for trafficking have increased in Indonesia despite recent cases of the death penalty being imposed. More than 50 persons currently sit on death row in Indonesia because of drug offences.

So what should we do?

The solution to the drug problem is two-pronged.

First, we should attack the source of the drugs – go after the owners and managers of the drug cartels rather than their soldiers. this need not only be via head on assault – identifying and confiscating their wealth would make the business notably less attractive. Significantly greater resources should be devoted to this effort.

Second, we should dramatically increase the health-based treatment of “hard” drug users in Western society, offering them treatment options which reduce demand for heroin, cocaine and amphetamines. While demand exists, the free market will find ways to meet it. One entirely sensible move would be to decriminalise (note, not legalise) these drugs and dispense them via the pharmacy profession, which would break the nexus between traffickers and also reduce death due to overdose and allow health education to and intervention with addicts. This approach is widely regarded to have been extremely successful in Portugal.

Sadly, such moves are far less dramatic or newsworthy than tying people to a pole and shooting them. As always, politics is likely to win out over commonsense.

And in the meantime, those on death row and their families and friends go through the torments of hell wondering whether their sentences will, in fact, be carried out, and when. Such psychological torture is unconscionable in an advanced society.