A harsh response to executions would be foolish

Author

Tim Lindsey is Malcolm Smith Professor of Asian Law and Director of the Centre for Indonesian Law, Islam and Society at the University of Melbourne.

Tedjo Edhy Purdijatno, Indonesia’s powerful coordinating minister for political, legal and security affairs, said this week that Australia’s concerted efforts to prevent the execution of its two citizens, Myuran Sukumaran and Andrew Chan infringed Indonesian sovereignty and should stop.

 

He is not the only senior Indonesian figure to say this, but they are all wrong. This has nothing to do with sovereignty.

 

Australia has a perfect right – even an obligation – to use all legal and diplomatic means within its power to win mercy for its citizens on death row anywhere in the world. In this case, it has done so with much determination but always within the parameters of the Indonesian legal system and diplomatic practice.

 

Australia has, in fact, done no more than Indonesia itself routinely does for its own citizens on death row overseas. A well-funded taskforce with precisely this mandate was set up in 2011 and has reportedly been successful in more than 60 cases, with 229 Indonesians still facing execution around the world.

 

A few weeks ago President Joko “Jokowi” Widodo even ordered that additional resources be provided to the taskforce. Surely, Tedjo would not suggest that this taskforce was interfering in the sovereignty of other countries?

 

Tedjo also threatened that Indonesia might retaliate by releasing a human “tsunami” of 10,000 asylum seekers to Australia. This is not government policy. It is common for Indonesian government figures to express personal opinions to the media on the run. Tedjo is a controversial and erratic figure with a record of inflammatory media commentary who is often at odds even with members of his own party.

 

His comments do, however, reflect the fact that the bilateral relationship is once again, very tense. That should not surprise anyone. Disputes are inevitable between neighbouring countries – all the more so when differences of size, wealth, history, culture and religion are so great. The real question is not whether problems arise but how they are handled.

 

That presents a major challenge for the Abbott government. It needs to rethink of the how the relationship is managed, particularly when it comes to serious criminal cases. This is necessary because the inexperienced and inward-looking administration of President Widodo is proving much harder to deal with than the previous government of Susilo Bambang Yudhoyono, which, for all its flaws, was more professional, competent and internationally-oriented.

 

In fact, Jokowi’s government seems to be in trouble. Some of the influential civil society groups that led the social media push that got him across the line in the 2014 elections are even beginning to panic. 

 

Despite promises of a clean, technocratic cabinet based on merit without party hacks, Jokowi delivered the opposite. There are far too many ministers who are inexperienced or owe appointment to powerbrokers, and far too few with reform and governance credentials. The cabinet lacks unity and its performance has been lacklustre at best.

 

Jokowi also seems to be unable to stem the latest attacks by an aggressive clique of senior police against anti-corruption campaigners, including the highly-regarded Anti-Corruption Commission (KPK), a national symbol of reform. The police are cheered on by political parties (including Jokowi’s), who loathe the KPK.

 

This is a high-stakes struggle. If the KPK loses, many civil society leaders may abandon Jokowi. That could be catastrophic for him. He still lacks a reliable majority in the legislature (although he is getting closer). As a provincial outsider he has little elite backing, even within his own party. Instead, he reaches past them to the public, via civil society.

 

Without civil society, Jokowi could be cut down or, more likely, powerful conservative figures like his party leader, Megawati Soekarnoputri, media mogul Surya Paloh and former intelligence head Hendropriyono, could complete the process of capturing him, leaving him little more than a puppet.

 

All this makes for a messy, nervous and fragmented government, strongly focused on its domestic image and anxious to be seen as tough. It also helps explain the dramatic ramping up of nationalist rhetoric since it became a theme in last year’s campaign, leading even to foreign fishing boats in Indonesian waters being fired upon.

 

Some hawks in Canberra have been calling for a harsher response to Indonesia. They say it is time stop “pandering” to Indonesia. This is bad advice. Rightly or wrongly, Australia has, in fact, been uncompromising in recent disputes with Indonesia, from people smugglers (unilateral action) to the Snowden wiretaps revelations (no apology).  

 

This has racheted up tensions. Pushing it further with a chaotic, insecure and inexperienced government that feels threatened would play into the hands of nationalist hotheads. They would welcome the opportunity of kicking Australia to enhance their own credentials domestically.  This was clear from the viral “coins for Australia” backlash against ill-advised comments made by the Prime Minister that were read in Indonesia as suggesting that Indonesia was obliged to reprieve Sukamaran and Chan because Australia gave aid after the 2004 tsunami.

 

A hardline approach to Indonesia now would destroy what slim chances remain that Sukamaran and Chan could avoid the firing squad. But if the two Australians are killed, public pressure on the Abbott government to get tough will be huge. It will have to be very careful in deciding how to react.

 

Diplomatic protests would be inevitable but there have also been calls for trade sanctions. This would be futile as we are only the 12th-ranked two-way trading partner, and invest more in New Zealand than Indonesia. It would probably hurt us much more than Indonesia, as the beef cattle debacle showed.

 

Equally, the aid program should not be used as a lever. That would only punish very poor communities (mainly in eastern Indonesia) that have nothing to do with Jakarta politics. It would also destroy important avenues of access and influence built over decades, again to our disadvantage.

 

Instead, any response should be focused on the real issue in dispute here between our two countries – criminal justice.

 

The cases of Schapelle Corby, the “Bali boy”, underage boat crew and the Bali Nine, among others, have soaked up enormous amounts of time, money and political capital in both countries – and provoked serious bilateral tensions. Sadly, we can be sure that there will be more Australians in serious trouble in Indonesian courts in the years ahead, just as there will continue to be many Indonesians in our criminal justice system.

 

It is therefore past time to replace the current piecemeal and ad hoc approach to these cases with a new, comprehensive and more effective mechanism for bilateral criminal cooperation between Australia and Indonesia, covering all the issues raised in recent legal controversies, from the death penalty to prisoner exchanges, arrest protocols, parity of sentencing, extradition, parole, repatriation, and so on.

 

Some of these mechanisms – like extradition – are in place but do not work well. The rest have been negotiated for many years without success. Fixing it all will be extraordinarily complex and time-consuming but it is desperately needed.

 

If Sukumaran and Chan are killed, Australia must express its sorrow and distress in the strongest of terms, and reiterate its strong opposition to the abhorrent practice of capital punishment. It should also, however, be constructive, and call for new start to developing a comprehensive bilateral criminal law cooperation system that may just prevent this tragedy happening again.

 

 

This article was originally published in The Age.