7 reasons why Bali pair should not have been killed

By Tim Lindsey

There is no shortage of reasons why Myuran Sukumaran​ and Andrew Chan should not have been shot dead by an Indonesian firing squad early on Wednesday morning.

The first is that their deaths, and those of the other offenders killed with them, are pointless. There is also no evidence anywhere that executions act as an effective deterrent. They have no measurable effect on the frequency with which capital crimes are committed. This means that President Joko "Jokowi" Widodo​'s claims that no mercy should be shown to drugs offenders in order to prevent further drugs crimes being committed are without substance.

The second is the argument from principle. No state, anywhere, has a legal system that can reliably deliver decisions of sufficient integrity to be entrusted with the power to kill. That is true, regardless of the offences involved, and it is certainly true of Indonesia.

That country has undergone massive reform since Suharto​ resigned in 1998, but its legal system remains deeply flawed. Its low levels of competence and, worse still, corruption, have been publicly acknowledged by every president and chief justice since Suharto. The Indonesian courts are now certainly capable of making good decisions from time to time, but there are few Indonesians who would feel they can be trusted with everyday litigation, let alone life-and-death decisions.

Third, the process by which Widodo refused Sukumaran's and Chan's requests that their death sentences be reduced to life in prison was also deeply flawed. Widodo's reported admission that he never even read the detailed applications they submitted but dismissed them out of hand was, on any reading, a fundamental denial of natural justice. It was all the more egregious because lives depended on it.

Fourth, the decision by the Administrative Courts that the president's exercise of his power of clemency was entirely a matter of his discretion and beyond its jurisdiction was also troubling.  If this decision was right, then the question of whether the president has complied with the Law on Clemency – which was produced specifically to regulate how he decided clemency cases – can never be tested. Surely that renders the Law on Clemency itself meaningless?

Fifth, after their failure in the Administrative Courts, the lawyers for Sukumaran and Chan took the question of how the Law on Clemency should be interpreted to the Constitutional Court, one of Indonesia's best-regarded judicial institutions. That case is yet to be decided.
Unfortunately, the Constitutional Court's powers of enforcement are very limited. It lacks the power to alter any existing sentence imposed by another court, and its decisions cannot be applied back in time to change a decision already made. This means that as a formal matter of law any decision by the Constitutional Court about the Law on Clemency and how the President should exercise his powers could never, of itself, stop the executions of the two Australians.

If the Constitutional Court, had, however, decided that the President's approach was wrong in theory then that would have placed huge political pressure on him to reconsider his treatment of Sukumaran and Chan and the other drugs offenders he left on death row. As matter of basic fairness, Widodo's government should therefore have delayed the executions until this case was finalised. This was certainly within its power. Instead, it pressed ahead with the killings.

Sixth, the decision of the Supreme Court to refuse to consider the merits of second "PK" Reconsideration or final appeal lodged by Sukumaran and Chan on the basis that only one such appeal is permissible was questionable. The Constitutional Court had already ruled that there could be no limits on the number of such appeals, and struck down a statute imposing such a limit. The Supreme Court, however, chose to ignore this, and instead relied on its own internal regulation limiting PKs to just one. This meant the court never gave consideration to the strong evidence of Sukumaran's and Chan's rehabilitation contained in their second PK application.

The roots of the problem here are twofold: the two courts see each other as rivals, and the Constitutional Court's governing legislation does not give it sufficient power to enforce its own rulings. Sukumaran and Chan thus found themselves victims of judicial institutional politics and, again, the weak powers of the Constitutional Court.

Seventh, Indonesia's independent Judicial Commission is investigating serious allegations by the lawyer who represented Sukumaran and Chan in their original trial. He says the death sentence was imposed on his clients only because they failed to pay bribes of at least $130,000 requested by the judges in the Denpasar District Court.

The Judicial Commission is not a court. It is an oversight agency that monitors judicial behaviour. If, however, its investigation finds the claims of corruption to be true, that would taint the whole proceedings. That would have constituted politically almost irresistible grounds for Widodo to revisit his clemency decision and commute Sukumaran and Chan's death sentences.

To its shame, the commission did not call for Sukumaran's and Chan's executions to be stayed pending the completion of its inquiry, and the government killed the two men before they could even give evidence to the commission. Again, it is hard to see this as anything but a fundamental denial of natural justice.

In these circumstances, the comments by some senior members of Jokowi's government that the Australian government's efforts to prevent the executions were infringements of Indonesian sovereignty are nonsense.

Our government did no more than the Indonesian government – through its well-funded death-row government taskforce – does for its own citizens awaiting execution around the world. Our government was fully justified in doing so because legal processes that led to the deaths of Sukumaran and Chan were riddled with problems, and the Indonesian government's decision to press ahead regardless of unresolved legal issues relevant to the two men's claims for clemency lacked natural justice and basic fairness. Our government was under a duty to do everything it could to support Sukumaran and Chan. It has done so with vigour, resolve, and (the Prime Minister's foolish comment on tsunami aid aside) tact and diplomatic skill.

In all these circumstances, it is appropriate that the Australian government takes action against Indonesia to show its deep displeasure with the killings. Our leaders should, however, keep two things in mind as they decide what to do.

First, Widodo is the weak and besieged leader of a struggling government that lacks experience and a competent, unified cabinet. Its members are focused on their own survival, and international relations run a distant second to increasingly chaotic domestic politics.

Indonesia's response to any retaliatory action from Australia will therefore likely still be about national sovereignty and put little value on our bilateral relationship.  This could lead to tit-for tat measures that could quickly escalate. Ultimately, we would probably be more damaged by this than would our giant northern neighbour. This is well understood in Jakarta. 

We might therefore be more effective if we spoke as part of a larger international group with citizens on death row or executed in Indonesia, for example European Union countries such as Britain, France and the Netherlands. That would make the issue the death penalty, not our bilateral relationship.

Second, there are many Indonesians who do not support what Widodo and H. M. Prasetyo, his hard-headed attorney-general, have done. Leading civil society organisations spoke out repeatedly against the executions and some senior lawyers and politicians (including some in cabinet) tried hard to prevent the killings. The team of committed human rights lawyers around Sukumaran's and Chan's courageous lead Indonesian counsel, Professor Todung Mulya Lubis​, fought tooth and nail to save the two men until, literally, the last hour. 

These people are struggling to keep Indonesia on the path towards abolition of the death penalty that it had seemed to be on under president Susilo Bambang Yudhoyono. They also represent wider groups advocating for rule of law and continued social reform. They have all become increasingly vulnerable to attack under Widodo's erratic and seemingly regressive administration.

We need to be sure that any action Australia takes does not make these groups even more vulnerable. That would only help those who are seeking to roll back reform in Indonesia. It would also do nothing to help the next Australians who find themselves facing serious criminal charges in Indonesia – and you can be sure there will be more

Tim Lindsey is Professor of Asian Law and director of the Centre for Indonesian Law, Islam and Society at the University of Melbourne. His article originally appeared 29 April in The Age.