Australian drug-smuggler Andrew Chan has lost his final appeal against a death sentence for his role in attempting to smuggle more than 8kg of heroin out of Indonesia. He will now almost certainly be killed by an Indonesian firing squad — unless he receives an unlikely last-minute pardon from President Susilo Bambang Yudhoyono.
The decision to kill Chan was reportedly made by Indonesia’s Supreme Court more than a month ago, but it has only now been made public — two days after Abu Bakar Bashir was handed a 15-year sentence for being the motivating force behind the Bali bombings, which violently killed 88 Australians. Chan’s fellow death-row inmate Myuran Sukumaran’s appeal is still pending.
The news that an Australian will be killed by the Indonesian state was greeted here with barely a ripple over the weekend — while the media ran interviews with his stunned family members and Chan’s lawyers, Julia Gillard and Kevin Rudd made some soft and belated statements about doing all they could to help.
"The Australian government is opposed to the death penalty and we will be supporting Andrew Chan’s appeal for clemency," the Prime Minister told media. "I will be happy to do whatever is necessary … We will be working with Andrew Chan and his family and his legal representatives to make sure we have the strongest possible case."
But she refused to condemn the sentence, adding: "I don’t want to get into commentary about the judicial system of other countries because its not appropriate."
Similarly soft statements were made by John Howard when another Australian, Van Nguyen, was facing the gallows in Singapore. Nguyen, a 25-year-old, was sentenced to be hanged by the State of Singapore for trafficking 396 grams of heroin in 2003. "You are sentenced to be hung from the neck until you are dead," he was told in a bureaucratic hearing that lasted minutes, as New Matilda reported.
Nguyen was killed on 2 December 2005, after a series of ineffectual interventions by the Howard government. In the last days of his life, then foreign minister Alexander Downer told media that Nguyen would need a miracle to save him now.
Chan is one of what the media have been calling the "ringleaders" of the Bali Nine — the implication being that he and Sukumaran therefore deserve a harsher sentence than their drug-carrying cohorts.
One of Chan’s "mules", Scott Rush, was also facing the death sentence but had his appeal upheld in May after former AFP chief Mick Keelty testified at his final hearing that Rush was, essentially, not as bad as his fellow death-row smugglers, and therefore deserved to have his death sentence commuted. The natural conclusion to this — and to the fact that Keelty chose not to appear at the appeal hearings for the other Australians facing death at the hands of an Indonesian firing squad — is that unlike Rush, Chan and Sukumaran deserve to die.
Keelty told the Denpasar District Court in September last year that Rush’s involvement in the smuggling attempt was minimal.
"[Rush’s] information was limited…not only was it his first trip to Indonesia but his first trip out of Australia," Keelty told the court. "So he had very little knowledge and very little role in the enterprise. He was a very young person. His role was a very minimal role. Scott Rush was not an organiser."
Keelty knows this because it was the AFP that tipped off its Indonesian counterparts about the Bali Nine’s activities in April 2005.
It was Scott Rush’s father who raised the alarm when he realised his then 19-year-old son, who had no money and a history of drug abuse, was planning a last-minute trip to Bali. Lee Rush called a lawyer friend who in turn called a contact within the AFP — and "asked him to have Scott intercepted before he left the country, on suspicion of illegal activity. By his account, he was assured this would happen".
But as Sally Neighbour reported for The Australian in an excellent feature called ‘How the AFP trapped the Bali Nine’, the AFP took a different course.
"Instead, as the young Queenslander was preparing to fly out of Australia, the AFP tipped off their counterparts in the Indonesian National Police. Nine days later Rush was arrested with three other mules at Bali’s Denpasar airport as they were about to return home with nearly 8kg of heroin strapped to their bodies."
In 2006, the Rush family took the AFP to court, claiming they had acted "negligently and without lawful authority by disclosing information to the Indonesians that led to Australian citizens facing the death penalty".
But a loophole in the AFP’s own Death Penalty Charge Guide — which outlines that "assistance may be refused in the absence of an assurance from the requesting country that the death penalty would not be imposed" — meant the policy only applied to cases in which charges are pending. In the Bali Nine case no charges had yet been laid.
As Neighbour writes:
"As a result, Justice Paul Finn ruled that the federal police’s conduct ‘fell squarely within the lawful functions of the AFP. Scott Rush and his colleagues were the authors of their own harm’. However, Finn urged the federal government and the AFP to review the procedures followed when providing information to foreign police forces that could expose an Australian citizen to the death penalty."
On instructions from the attorney-general, the AFP guidelines on co-operation were overhauled in December 2009.
After Van Nguyen was hanged by Singapore, Alexander Downer lashed out at claims his government did not do enough to save Nguyen’s life. But the truth is, they didn’t.
As former diplomat Bruce Haigh wrote in New Matilda at the time:
"To get a remission of the death sentence would have required eyeball to eyeball negotiations (and perhaps threats) to the Singapore Government. An informal discussion between the Australian and Singaporean Prime Ministers at the recent CHOGM in Malta was not in that category, and I would venture to suggest was a pro forma exchange designed as a sop to Australian public opinion."
John Howard said Nguyen’s killing should act as a warning to young people to stay away from drugs.
Kevin Rudd told media over the weekend that he would like to be remembered as one of Australia’s "better foreign ministers". He could start by getting two Australian citizens off death row.
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