Diplomacy with teeth

9th Feb 2015

 With impending execution of the two Australians in Bali I just wonder whether we are really doing enough to save them.

The whole thrust of the effort being made seems remarkably similar to the unsuccessful efforts made in respect of Van Nguyen before his execution in Malaysia in 2005.

If we learnt anything from that exercise it would be that firm, but polite diplomacy is unlikely to save Andrew Chan and Myurun Sukumaran.

At a diplomatic level, John Howard back then appeared to do everything he could to persuade the Malaysian authorities that it was unnecessary to execute Nguyen. He did however, stop short of invoking any sanctions which might have been open to him that might have really made the Malaysians sit up and listen.

So what is it that he could have done, and what is it that Tony Abbott and Julie Bishop might be able to do to save Chan and Sukumaran from their judicial execution? 

If either of them were my son, I would be insisting that the Australian government withdraw our ambassador from Jakarta and request that their counterpart in Australia return home as well. Interestingly, the Dutch and Brazilian governments both removed their ambassadors after their citizens were executed recently, which was probably little solace for the families of the executed men.

A pre-emptive termination of diplomatic relations between the two countries might bring some real bite to the negotiations over the two Australian death row prisoners.

If we wanted to really get fair dinkum about saving these men we could place restrictions on Garuda flying into and out of Australia until such time as we had some positive undertaking about the pending executions. And if that didn’t work, we could review the future of the cattle trade to Indonesia. After all we did take that step not that long ago when we took issue with their manner of slaughter of our cows. Ironically, none of our politicians seem to be contemplating it in relation to the impending slaughter of a couple of our citizens.

And then there is the whole question of our ongoing foreign aid commitment to Indonesia.

If we are serious about not having foreign powers carry out death sentences on Australian citizens then it is remarkable that none of these cards have been played or even mentioned in dispatches over the issue.

On any assessment, economic sanctions against Indonesia would have a significant rebounding effect on a significant number of Australians and their livelihood, the travel and cattle industries in particular. But what price do we put on a human life, or in this case, two?

It’s not all that long ago that the whole world took unified action against South Africa over its apartheid policies. Economic, social and sporting sanctions were invoked on a widespread basis in response to the repugnant government policies of the day. And it worked. 

On any objective assessment, the death penalty is a policy which one might consider to be as outdated and repugnant as apartheid.

We have not used the death penalty in Australian since 1967. It belongs in the same era as the White Australia Policy and the days when Indigenous people couldn’t vote. The fact that some American States still use capital punishment is at odds with most of the civilised world, although it sits reasonably comfortably with their constitutional rights regarding firearms, which effectively place no prohibition on meth-addicts being able to purchase and carry firearms at their will.

I am well aware of the extent to which the death penalty is known to every potential drug trafficker entering Bali, but that is hardly the point. I am also aware of the argument that sovereign states should be able to run their country exactly as they wish to enact and implement whatever criminal sanctions appeal to them.

But there has to be a limit to sovereignty and that must include the reservation that no State should be entitled to execute the citizens of another.

To enforce this may come at a heavy price financially and diplomatically. But unless we are prepared to put some teeth into our negotiations on behalf of our death row citizens in Bali we might as well make a reservation now for their caskets to come home.

Tom Percy QC practises primarily in the area of criminal law, specifically jury trials and appeals. In 1984 he was elected to the West Australian Bar Association and was appointed Queens Counsel in 1997. He has been awarded the Australian Lawyers Alliance's Civil Justice Award (2007) and Law Society of West Australia's Community Service Award (2006) and Lawyer of the Year Award (2013).

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Criminal justice Indonesia