A matter of principle
Frank Brennan 
July 30, 2008 - 12:00AM 

Illustration: Spooner 

Australia should never compromise its principled stand against capital 
punishment - even for the Bali bombers.

LAST week, Helen Clark, the New Zealand Prime Minister, was asked about the 
pending execution of the three Bali bombers in Indonesia. 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." Kevin Rudd and his ministers need to say the same thing on our 

As well as the Bali bombers, there are at present three young Australians on 
death row in Indonesia. One is Scott Rush, a drug mule. Other Australians in 
the drug trade will face a similar fate. For their sake, we need to put a 
consistent position on the death penalty now.

It would, of course, 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 here at home. In dialogue with Indonesia, we do not need to 
apologise for our universal argument against capital punishment. Anything more 
nuanced will not help those like Scott Rush who could face a firing squad for 
being stupid drug mules.

To date, Kevin Rudd has 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.

On the eve of the Bali bombing anniversary during last year's federal election, 
the now Attorney-General 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 Scott Rush and his parents, Christine and Lee, 
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 will be a tragedy, and not just for Scott Rush and other 
Australians facing death row, if Australian politicians welcome or endorse the 
execution of the Bali bombers.

Not to intervene at all while consistently stating one's principles is 
defensible. To seek or endorse the death penalty for some but not for others 
when those others happen to be our own will be labelled rank hypocrisy on the 
streets of Jakarta.

Scott Rush does not deserve to die. He did not commit the worst of offences. He 
has been arbitrarily singled out for the death sentence by the Indonesian 
courts with his three accomplice drug mules having been given life sentences or 
20 years' imprisonment. His criminal act, if successfully executed, would have 
caused direct harm in Australia rather than in Indonesia. Our courts would 
probably have imposed a 10-year sentence with a minimum of five years to serve. 
Responding to the pending executions of the Bali bombers, the Australian 
Government should not say or do anything that could jeopardise any attempts to 
save Rush's life.

Rush's execution would be not only bad news for him, his loved ones and other 
hapless Australian drug mules. His death 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 over to death regardless of our 
principled opposition to the death penalty. Killing our impressionable young 
drug mules, 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, we need to have an eye to 
sparing the lives of Scott Rush and all those sentenced to death by the state 
when there are non-lethal means available to protect us from their past or 
future wrongdoings.

Kevin Rudd 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 maximum punishment."

While extending our sympathy to the victims and their loved ones when the Bali 
bombers are executed, our politicians can still affirm our principled 
opposition to the death penalty. If they cannot, they must refrain from comment 
that undermines it.

Father Frank Brennan, SJ, is professor of law at the Australian Catholic 

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