I am honoured to be here this evening, sharing the podium with Lee and Christine Rush, the loyal parents who have stood by their son Scott during his trial, during his time in the Death Tower at Kerobokan Prison in Bali, and during his convoluted appeals process resulting in a life sentence. Four years ago when Scott was still on death row, he wrote a letter to those attending this same annual dinner organised by Lee and Christine in Brisbane for Australians Against Capital Punishment:
I'd like to thank you all for all that you are doing for me and the others here at the Death Tower. To all of you who have come to this function I would like to thank you for your caring and showing solidarity by your presence. There is not much that I can say in my circumstances but I can say this: I'm not a celebrity. I have committed a serious crime but I am reforming myself and want to show you that I am capable of complete reform.
Four years on, Scott is out of the death tower and there are only two Australians still there — Andrew Chan and Myuran Sukumaran. Each of them has now filed a petition for clemency with the Indonesian President. Scott used to share a cell with a young Nigerian Titus Ari (known to many of you as Emmanuel) who has none of the support provided to Scott by family, friends and consular services. Over the years, Scott and Emmanuel have each written to some of you here this evening. Brisbane lawyers have been exemplary in their provision of pro bono assistance to Emmanuel.
Two days ago was the tenth World Day Against the Death Penalty; more significantly for us Australians, today is the tenth anniversary of the Bali bombings which claimed 202 lives, including 88 Australians. Four years ago, I had the privilege of attending the memorial service for victims' families hosted by the Australian Consulate in Bali. Made Pastika, the Balinese Governor who as Head of Police led the successful police investigation into the bombings, spoke at the service recalling how the paradise of Bali had been transformed into a living hell. He espoused the common humanity of all, reminding us that the victims were of all religions and none, of many races, of nationalities near and far. The Indonesian choir sang Advance Australia Fair with conviction and the Ave Maria with reverence, as well as the Indonesian anthem and an Indonesian song.
Many wept as they came forward to place flowers at the foot of the wooden cross which had been erected outside the Consulate immediately after the bombing. All felt deep sympathy for the victims and their families. The media-amplified pleas of some of them that the bombers be executed, and quickly, were understandable. For me, talk of the death penalty back then evoked the young, frightened faces of Scott and Emmanuel, as well as the laughing, haughty faces of Amrozi, Mukhlas and Imam Samudra . The latter three were executed on 9 November 2008; Scott is off death row, and Emmanuel faces a very uncertain future.
Back then, I was troubled by Prime Minister Kevin Rudd's response to the gloating Bali bombers at the end of Ramadan when he said, '[T]he Bali bombers are cowards and murderers pure and simple, and frankly they can make whatever threats they like. They deserve the justice that we delivered to them.' I thought the time had come when our national leaders could espouse that justice excludes the death penalty for anyone, no matter what their offence and no matter what their lack of remorse. Afterall the new Rudd Government did vote at the UN for a motion urging retentionist States to 'establish a moratorium on executions with a view to abolishing the death penalty'. Presumably our diplomats were not unmindful of the fate of the Bali bombers when they decided to join the call for an immediate moratorium aimed at eventual abolition of the death penalty.
When Australian citizen Nguyen Tuong Van was facing the death penalty in Singapore back in 2005, Kevin Rudd had told Parliament: '[W]e hold one fundamental human value to be true, and that is the intrinsic dignity of all human life. It is for this reason that we oppose all forms of capital punishment. For our policy to be credible, we must apply it universally. We must be credible in our opposition to capital punishment as a matter of policy wherever it occurs'.
For the sake of Andrew Chan and Myuran Sukumaran, for Emmanuel's sake, and for the sake of the community of nations working towards a moratorium on the death penalty, this should be Australia's position even when we are confronted by murderous thugs like the Bali bombers. Withholding none of the sympathy I felt all around me at the Consulate four years ago, I think Australia is ready to be led and to lead others down a more humane path, away from the death penalty. Some of us have been waiting a long time for this lead. I have been waiting since I was 12 years old at a Queensland country boarding school where I was in the same dormitory as your esteemed president, Steve Keim SC.
It was 3 February 1967. Breakfast started at 7.45am. The din of 300 boys at table was always deafening once the supervising priest declared, 'Deo Gratias'. For the first and only time in my five years at the school, a handful of senior boys called for a minute's silence at 8am to mark the hanging of Ronald Ryan in Melbourne Jail. As Ryan dropped, you could hear a pin drop in faraway Toowoomba. The recollection still brings goose bumps. This was wrong. It should never happen again. How could a nation do this? All Australian jurisdictions then abolished the death penalty, and now our government has joined the call for an international moratorium.
In 1995, I was working in a Sudanese refugee camp on the Uganda border. At night I would sit in my tent listening to the BBC World Service on the short wave radio. One night I heard the announcement that the South African Constitutional Court had ruled the death penalty unconstitutional. The lead judgment had been written by the president of the court, Arthur Chaskalson. We had shared the platform at the opening of the Commonwealth Legal Convention in New Zealand a couple of years before. When returning to Australia via Johannesburg I met Arthur and he proudly gave me a copy of the judgment. He had quoted liberally from the dissenting jurisprudence of Justices Brennan and Thurgood Marshall on the US Supreme Court. I happened to be on my way to Georgetown Law School on a Fulbright where I had the good fortune to meet regularly with my namesake Justice Brennan who, though retired, still came into chambers. Over lunch one day, I gave him my copy of Chaskalson's judgment. Tears welled up in his eyes as he realised that some of his most sterile and consistent dissent writing had born fruit on the other side of the globe.
There is always point in standing up for principle even when the view expressed is unpopular and a minority view. Like Justices Chaskalson and Brennan, Australian prime ministers are well positioned to contribute to the abolition of the death penalty. None of us should ever again have to look into the eyes of Andrew, Myuran and Emmanuel returning to the Death Tower.
Coming from the Judaeo-Christian tradition I acknowledge that religious teaching on the death penalty has not always been abolitionist. I do claim that the developments in our religious thinking are keeping pace with the developments in international law and in best international practice on the death penalty. Abolition of the death penalty is the only way to go. But we are not there yet.
The Mosaic Law specifies 36 offences which carry the death penalty with provision for execution by a variety of means: stoning, burning, decapitation and strangulation.2 Jesus accepted that the State may impose capital punishment; he himself was subject to such penalty, without his questioning the right of the State to impose such punishment. Early Church Fathers like Augustine saw no conflict between the divine law prohibiting killing and the State exercising the prerogative to execute the criminal 'according to law or the rule of natural justice'.3 When the 1992 Catholic Catechism promoted by Pope John Paul II was first published, it stated: 'The traditional teaching of the church has acknowledged as well founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime not excluding, in cases of extreme gravity, the death penalty.'
Despite the enthusiasm of some conservative and influential Catholics in the United States, Pope John Paul II before his death approved changes to the Catholic Catechism in 1997 stating:
Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and are more in conformity to the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm — without definitely taking away from him the possibility of redeeming himself — the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically non-existent.'
This principled stance should have broad appeal in all our societies and not just to Catholics, not just to Christians. Sr Helen Prejean whose advocacy against the death penalty was internationalised with the movie Dead Man Walking was instrumental in having the Pope change his mind on the death penalty. She says:
In his visit to St. Louis in January 1999, Pope John Paul II, for the first time ever, positioned the death penalty as a 'life issue' alongside abortion, euthanasia, and physician-assisted suicide. Calling the death penalty 'cruel and unnecessary,' the pope called on people to work for its abolition. In his previous four visits to the United States, the pope had never mentioned the death penalty. Polls show that, in fact, Catholics and most Christians support the death penalty in roughly equal proportion to other pro-capital punishment Americans. Most people who call themselves 'pro-life' seem to mean pro innocent life. Most feel that those guilty of heinous crimes lose their right to life and should be executed.
Cardinal Avery Dulles was right when he claimed in a 2001 essay for the conservative journal First Things, 'The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty.' Dulles went on to say, 'The pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like (the US), the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position.' Even if the death penalty were still arguably just in some circumstances, Dulles was conceding that it no longer had utility on the considered opinion of the leaders of his and my religious tradition.
This development in a major religious tradition tracks well the development at the United Nations with a biennial resolution calling for 'a moratorium on the death penalty' having been passed by the General Assembly on 18 December 2007 by a vote of 104 in favour to 54 against, with 29 abstentions. Admittedly in our part of the world, most Member States do not vote against the resolution. But that is not the global trend. Voting against the resolution in 2007, the Singapore delegation noted that 'each State had a sovereign right to choose its own political, criminal and judicial systems', stressing that Singapore would continue to follow its own course in the matter.
The periodic votes on the UN Resolution are showing a gradual trend in the right direction. In 2008, there were 106 in favour with 46 against and 34 registered abstentions. In 2010, there were 109 countries voting in favour, 41 against and 35 abstentions.
In a few weeks time, the UN Resolution will once again come before the General Assembly. Hopefully the momentum for a moratorium will continue to build. Speaking three days ago, UK Foreign Office Minister Baroness Warsi said, 'There has been good progress since the last resolution in 2010. Several countries have either abolished the death penalty, or taken steps such as ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, which addresses the death penalty. In addition, there are many states which keep the death penalty in their legislation but do not use it.'
When Helen Clark, then the New Zealand Prime Minister, was asked about the pending execution of the three Bali bombers back in 2008, she replied: 'The New Zealand Government does not support the death penalty under any circumstances. Clearly these men are guilty of heinous crimes and those crimes, in any jurisdiction, would justify them (getting) very serious penalties available under law but the New Zealand Government will not and does not support the death penalty.' Understanding something of the grief of the Australian families who lost loved ones on this day ten years ago, I am still sorry that our own political leaders could not be as clear and unequivocal about opposition to the death penalty.
We need to consider the plight of Andrew Chan and Myuran Sukumaran. Undoubtedly there will be other Australians in the drug trade who will face a similar fate. For their sake, we need to put a consistent position on the death penalty now.
It would be crass and illogical to distinguish those on death row according to their nationality or ethnicity. Some people and states who support the death penalty would distinguish murderous terrorists from other criminals such as drug mules. But we Australians have long articulated a universal ban on capital punishment at home. In dialogue with Indonesia, we do not need to apologise for our universal argument against capital punishment. Inconsistency of approach will not help those Australians who could face a firing squad for being stupid drug mules.
Those of us with sympathy for Australian drug mules and smugglers in Bali, and their families, can see why it is not only principled but also sensible for the Australian Government to state a constant philosophical position on capital punishment even if it decides to intervene in foreign countries only when one of our own is on death row. It would have been better if Australian politicians declined to welcome or endorse the execution of the Bali bombers. It would also be better if our Parliament were to legislate to ensure that Australian police would not co-operate with foreign police investigations unless an assurance could be given that the death penalty would not be imposed, no matter what the offence.
Last month, the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 came into effect. As a result of this new legislation, the amended Mutual Assistance in Criminal Matters Act 1987 now provides:
A request by a foreign country for assistance under this Act must be refused if:
(a) the request relates to the investigation, prosecution or punishment of:
(i) a person arrested or detained on suspicion of having committed an offence; or
(ii) a person charged with, or convicted of, an offence; and
(b) the offence is one in respect of which the death penalty may be imposed in the foreign country;
unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.
This is an improvement on the law as it existed before the Australian police co-operated with the Indonesians in relation to the Bali Nine. At least the provision now covers cases of investigation prior to a person being charged and not just cases in which a person has already been charged as was previously the law. You will recall that under the Indonesian system, suspects are not charged until very late in the criminal investigation process. The Australian Attorney General can still give the go ahead to Australian police co-operation 'in special circumstances' even if someone might face the death penalty. The Government's explanatory memorandum to Parliament stated that special circumstances could be established 'where the requesting country has provided an undertaking that the death penalty will not be imposed, or if it is imposed, will not be carried out'. The amendment still does not satisfy the concerns of many including the Australian Human Rights Commission which submitted to Parliament:
Australia has committed itself to opposing the death penalty by becoming a party to the Second Optional Protocol ... The Commission expresses concern about the reliance on undertakings or diplomatic assurances where there are substantial grounds to believe the provision of assistance would result in an individual being subjected to the death penalty.
If there are precedents for the death penalty being carried out for offences of the sort to be investigated, Australian police should not co-operate in any investigation unless high level government assurances are given and those assurances can be tabled in the Australian Parliament.
Four years ago, Prime Minister Rudd said: 'In the case of foreign terrorists we are not in the business of intervening on any of their behalfs.' It is always a question of prudential statesmanship when to intervene in the domestic affairs of other countries. But even when a decision is taken not to intervene to protect the human rights of foreign nationals in another country, a responsible Australian government can still express its view on the appropriate universal values that we espouse in season and out of season.
You will recall that on the eve of the fifth anniversary of the Bali bombing during the 2007 federal election, Robert McClelland received a pasting from politicians on both sides of the political fence because he stated unequivocally the Labor Party's universal opposition to capital punishment. Peter Costello said: 'Let's have some sympathy for the 88 dead and their families, rather than sympathy for those who cruelly and cold-bloodedly decided to kill them for no reason, other than they were Australians.' We can still have and show sympathy for the deceased victims and their families while maintaining a principled stand against capital punishment.
Those of us with sympathy for Andrew Chan, Immanuel and Myuran Sukamaran can see why it is not only principled but also sensible for the Australian Government to state a constant philosophical position on capital punishment even if it decides to intervene in foreign countries only when one of our own is on death row. Not to intervene at all while consistently stating one's principles is defensible. To seek or endorse the death penalty for some such as the Bali bombers but not for others when those others happen to be our own is seen as rank hypocrisy on the streets of Jakarta.
The execution of Andrew Chan or Myuran Sukamaran would unreasonably hamper Australian law enforcement officers co-operating with Indonesian authorities in busting future drug rings attempting to move drugs from Indonesia to Australia. Or else it would place Australian law enforcement officers in the invidious position of routinely handing Australian drug mules or smugglers over to possible death regardless of our principled opposition to the death penalty. Killing our impressionable young druggies, even at Indonesian hands, is too high a price for Australia to pay in combating the importation of illegal drugs. We can co-operate closely in defeating drug smuggling if the Indonesians respect our opposition to the death penalty, especially for what ought to be non-capital offences.
While we contemplate the deaths of the Bali bombers and those they cruelly massacred, we need to have an eye to sparing the lives of those sentenced to death by the state when there are non-lethal means available to protect us from their past or future wrongdoings.
Prime Minister Gillard and Opposition Leader Abbott could say, 'It is not our place to intervene publicly when the Indonesians or even when the Americans decide to execute their own. We Australians believe that capital punishment is wrong. We will always agitate to spare our own from capital punishment, especially when they are convicted of offences deserving less than the worst possible punishment.' I can do no better than quote Stephen Smith, then Minister for Foreign Affairs, who had the courage to say to the House of Representatives one day after the execution of the Bali bombers when our radio shock jocks were celebrating the deaths:
Australia, through the states, abolished capital punishment, the death penalty, more than 20 years ago. The view of the Commonwealth of Australia, and I choose my words carefully to include the states, the territories and the Commonwealth, has been that the death penalty is not appropriate for Australia. Internationally, Australia supports the abolition of the death penalty as a form of punishment, and Australia and the Australian government have been active in the United Nations, urging this view upon nations who continue to use the death penalty as a sanction ... I have noted the comments made by those opposite which reflect the bipartisan approach on this issue in terms of both of a domestic sanction and Australia's view to the world generally.
Let's remember that it is two years since Indonesia has executed anyone. There are presently over 220 Indonesian nationals on death row in places like China, Singapore, Malaysia and Arab countries where they work as cheap labour. Indonesian society was outraged by Saudi Arabia's beheading in June 2011 of Ruyati, a 54 year old Indonesian domestic servant who killed her employer arguably in self-defence. The Saudis callously proceeded with the execution without even acknowledging Indonesian pleas for clemency. Indonesia has a strong national self interest in not executing foreign nationals or their own at home, as this strengthens their hand in pleading for their nationals on death row in other jurisdictions. Indonesia is ripe for banning the death penalty.
While extending our sympathy to the victims and their loved ones on this sad tenth anniversary of the Bali bombing, we can still affirm our principled opposition to the death penalty. Many of us did feel deep regret, tinged perhaps with some national relieving sense of closure, when the State bullets pierced the hearts of Amrozi, Mukhlas and Imam Samudra, when the State gave them the martyrs' deaths they sought. We continue to feel the deepest sympathy for their victims and the victims' relatives while hoping for a world order in which no State kills in cold blood. Being neither just nor useful, the death penalty has become immoral. Justice must not kill. If we could not proclaim that message in the week which commemorates both the Bali bombings and World Day Against the Death Penalty, we would be less morally certain than we thought. It's time to abolish the death penalty so that we can co-operate more effectively internationally combatting terrorism and the drug trade, without forfeiting the principles we hold dear. It's time to abolish the death penalty so that we can affirm the value of all human life and so that we can prescribe the right moral limits to the State's dominion over the human person.
The above text is from Fr Frank Brennan SJ's paper 'Reflections on the death penalty on the tenth anniversary of the Bali Bombings' presented at the Australian Lawyers for Human Rights and Australians Against Capital Punishment Dinner, Red Hill, Brisbane, 12 October 2012, Commemorating the 10th World Day Against the Death Penalty.