photo: Still on death row: Andrew Chan and Myuran Sukumuran. Anta Kesuma
With Susilo Bambang Yudhoyono's last days in office passing without an act of presidential clemency, two of Australia's "Bali Nine" convicted drug smugglers, Andrew Chan and Myuran Sukumaran, remain on death row in Indonesia. They are liable to be taken out in the early hours any day to be shot by firing squad.
But even if the new president, Joko Widodo, commutes their sentences, Australia and New Zealand seem likely to remain quite isolated in our region in calling for abolition of the death penalty. So how should this sometimes forlorn argument be carried forward?
Frontal attacks on the "barbarity" of capital punishment only harden attitudes in foreign governments, if the Barlow and Chambers case in Malaysia (1986) and the Nguyen Tuong Van case in Singapore (2005) are a guide.
By contrast, about 35 Australians have faced court in Vietnam since 2001 for serious drug offences and six got the death penalty, as the Asian Law Centre's Professor Pip Nicholson told a recent forum held in Melbourne by the anti-capital punishment group Reprieve Australia. All six received presidential clemency.
Why did these cases not become a public cause in Australia? Professor Nicholson thinks it's partly due to the absence of Australian media in Vietnam, the closed nature of many trials, and language difficulties. More critically, Vietnam's leaders were given space.
"Those who have been involved in assisting with the defence or working with local lawyers in Vietnam on these cases are anxious to let the clemency process run its course without necessarily seeing that upset by the intrusion of a counter narrative from a Western media source about the inappropriateness of the death penalty," Prof Nicholson said.
"It is very helpful to run a moral narrative about a defendant facing serious charges in the local press," she added. "So, for example, if your defendant has been coerced or manipulated into offending, it is good to get that story out there in the Vietnamese press, but it is unhelpful to have Western media or foreign media 'sandwiching' the leadership which is minded to consider seriously clemency applications from a range of governments."
Lex Lasry, now a judge in the Victorian Supreme Court, acted for Nguyen Tuong Van in 2005. "The reality is, looking back at it, I think Van Nguyen was dead from the time he was arrested," he told the Reprieve gathering.
But there were lessons to be learnt for future cases. "The most counter-productive thing you can do is be insulting," Judge Lasry said. "It really ill behoves Australians to be too insulting about countries that have the death penalty because, after all, until the 1970s we had a mandatory death penalty too."
Another lesson was that there was the start of a debate in Asia which Australia could join.
Several countries have already shifted position. Notably, the Philippines abandoned capital punishment in 2006. Although they retain the penalty in their laws, South Korea has not carried out an execution since 1997, Thailand since 2009. Rather oddly, Myanmar has not carried out a judicial execution since the 1980s, Sri Lanka since 1976; although extra-judicial killings have been rife in both countries.
Perhaps as a delayed effect of its embarrassment in 2005, Singapore modified its law two years ago to give judges discretion not to apply the death penalty in cases like Nguyen's.
Indonesia, too, is in a bind. It has nearly 200 citizens facing the death penalty in Saudi Arabia and Malaysia mostly, many of them female domestic workers who struck out against abusive employers.
"The double standard is they defend Indonesian citizens against the death penalty overseas, but at the same time in Indonesia they apply the death penalty," said Todung Mulya Lubis, a leading Jakarta lawyer who tried in 2007 to get capital punishment ruled unconstitutional.
China is, of course, the elephant in the debate, almost too big to grapple with. According to the Dui Hua Foundation, which helps political prisoners, China carried out 2400 executions in 2013. This actually represents a "steep decrease" over the last decade or so, says Elisa Nesossi, an expert on the Chinese judicial system at the Australian National University's College of Asia and the Pacific. In 2002, for example, there were an estimated 12,000 executions, and further back in 1983 in a "Strike Hard" campaign against crime, about 20,000 were put to death.
The drop came after the chief justice of the Supreme People's Court, Xiao Yang, called in 2005 for a "Kill Fewer, Kill Cautiously" approach. In 2007, the state ordered all death sentences to be referred to the apex court by lower courts. "The number of reviews has increased and a lot of cases are sent back to the provinces for review," Ms Nesossi said.
A debate continues with some Chinese legal scholars and non-government groups arguing for a reduction in the number of crimes bringing the death penalty. "But numbers and processes remain opaque," Ms Nesossi said, "with the impact of the current campaigns against corruption and unrest in Xinjiang still unclear."
Criminology is part of the debate. Executions have little correlation to the rate of crimes they are supposed to deter. Drug seizures are rising in Singapore. Hong Kong's murder rate has fallen since it stopped hangings in 1966.
The possibility of wrong conviction is also too high to allow a penalty that cannot be reversed, especially in judicial systems like that of Japan which place a high value on confessions, and allow police to isolate and pressure suspects into making them.
But there's a moral argument that might be hardest to win. In many Asian countries (and the United States), politicians agree with majority public opinion that certain convicts deserve to die.
Pointing to a recent opinion poll showing 85 per cent support for the death penalty, Japan's then justice minister, Midori Matsushima, declared last month: "Japan currently has no intent to change its position on this issue."
Andrew Horvat, of Tokyo's Josai International University, says this stern morality quickly leads to criminals being judged incorrigible. "After that, it is quite easy to accept the idea that there are people who are so thoroughly evil or selfish that they no longer have the right to live," he said.
This also dispatches the idea of redemption, and the lessons it can give. The case of Norio Nagayama, convicted for a series of spree killings, is illustrative.
As a recent documentary film showed, psychiatric evidence about the effects of his abandonment as a child by a mother who was herself abused was kept away from the court by prosecutors. In jail, Nagayama became a noted novelist, came to terms with the gravity of his crimes and regularly wrote to the families of his victims, sending them funds from the royalties for his novels. Nonetheless, he was hanged in 1997.
Hamish McDonald is Journalist-in-Residence at the Australian National University's College of Asia and the Pacific.
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