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Death row: a tragic reminder for Australian travellers

The execution in Indonesia of six death row prisoners early last Sunday, including five foreigners, convicted of drug smuggling and the refusal by president Joko Widodo to grant clemency from the death penalty for Myuran Sukumaran has cast into sharp relief his likely fate and that of fellow death row prisoner Andrew Chan.

Chan's appeal for clemency has not yet been decided by President Widodo but, consistent with his decision on Sukumaran, he has said that he will not grant clemency to convicted drug smugglers.

Widodo, or 'Jokowi' as he is better known, came to the Indonesian presidency last year as a reformist and with what was understood to be a human rights agenda. Human rights advocates in Indonesia have been dismayed by his refusal to grant clemency in death row cases.

From Jokowi's perspective, however, there are two issues driving him in these cases. Both are compelling, if for different reasons, and both play against Australian calls for clemency.

The first issue is that Jokowi came to office on a clear 'reform' platform, which includes both respect for the rule of law and opposition to interference in the judicial process. Indonesia's judiciary has long been regarded as compromised by special interests, including political pressure, so Jokowi's refusal to involve himself in judicial matters is consistent with his view of reform.

As a country which opposes the death penalty on principle, Australia's government is obliged to seek clemency on behalf of its citizens. Australia's political leaders, including Prime Minister Tony Abbott and Foreign Minister Julie Bishop, have done so, no doubt sincerely, but knowing their chances of success are limited.

As importantly, the death penalty applies equally to Indonesian citizens as foreigners, and any sense that there should be an inconsistency on this basis is repugnant to many Indonesians. In particular, many Indonesians' often well-developed sense of national pride would be deeply offended by any such a double-standard.

Jokowi is not only sensitive to this, but also sensitive to the fact that Indonesia's legislature, the DPR, is overwhelmingly stacked with his opponents. If he wishes to proceed with his reform agenda, he will require the DPR's cooperation.

Many DPR members are focusing closely on Jokowi's public acts and would be quick to pounce if there was even a hint of a double-standard. Indeed, there is even a chance that Jokowi could be impeached, as happened to one of his predecessors, president Abdurrahman Wahid. Public pressure within Indonesia, then, while often not explicit, is great.

How Australia represents its case for clemency is also critical. If Australia's appeal is too private then it can be dismissed without much ado. For Australia's domestic audience, too, the Australian Government would be seen to be doing too little for Australian citizens facing execution.

However, if Australian representations are too strong, it could engender a nationalist backlash. This would have the effect of further compelling Jokowi to reject any call for clemency that he might otherwise have been considering.

Australia's political leaders know there is little they can realistically do to alter the circumstances that Sukumaran and Chan now find themselves in. The only hope, such as it is, is that at this stage Chan's appeal for presidential clemency has not yet been rejected.

Indonesia's practice is that, when more than one person is sentenced to death for the same offence, the penalty is carried out simultaneously. Sukumaran last opportunity for appeal has failed, but Chan has not yet been notified of the same outcome. While Chan remains alive, so does Sukumaran.

However, if and when Chan's appeal for clemency is rejected by the president, the process will move relatively quickly. Probably within weeks, the pair will be given three days notification of their execution in order to finalise any outstanding business. They will then be taken to an execution ground and shot by a 12 man firing squad.

Despite the crimes for which Sukumaran and Chan have been convicted, there is a sense shared by many that the impersonal process of the state - any state - taking someone's life is bureaucratically grotesque. Yet, as various foreign ministers and the Department of Foreign Affairs and Trade have consistently said over many years, Australians overseas will always be subject to the laws on the countries they are in, up to and including the death penalty.

It is little comfort that Sukumaran and Chan's experience is serving as a stark object lesson to others who might be contemplating drug trafficking. It has been a decade since the last Australian, Van Tuong Nguyen, was executed for drug trafficking in Singapore. That death came 12 years after Australian Michael McAuliffe was killed in Malaysia.

It seems, with the passage of time, that such lessons are too easily forgotten. It is likely, however, that Australia will soon be reminded.

Charlie Hebdo attack an assault on the human condition.

Islam is a superstitious, antiquated belief system, its prophet spoke to imaginary voices in his head and its god is a figment of an ignorant imagination. I might believe this statement to be true, or I might not. Christianity is a superstitious, antiquated belief system, its prophet spoke to imaginary voices in his head and its god is a figment of an ignorant imagination. I might also believe this statement to be true, or I might not. And so on for each religion and, differing only in detail, for any other belief system or ideology.
What is important in these statements is not that I necessarily believe them, that they are objectively true or even that they are rational. What is important about these statements is that I be free to make them.
When three Islamist terrorists murdered 12 people and wounded 11 others at the office of the satirical magazine Charlie Hebdo in Paris, they were attacking this most fundamental principle of human rights. If all human rights are deemed as equal, as they are usually claimed to be, then freedom of speech is first among those equals.
Speech, or language, as a reflection of our ability to think, is the defining quality of being human. Speech is fundamental to our ability to express desires, fears, needs, concerns and, at the juncture of these qualities, views, values and opinions. That this has become fundamental to liberal democratic society is but a development of its own prior logic; freedom of speech necessarily implies a plural, tolerant political system.
In this, human rights are predicated upon the quality of being human, not being the citizen of a particular country or the adherent, or even respecter, of a particular faith. In this, freedom of speech is especially elevated among human rights in that it is both; it reflects freedom to express oneself on matters of interest or importance, and it reflects freedom from censorship, control and subservience.
Without such freedom of speech, such religions that exist would be allowed only by the arbitrary whim of a particular holder of sufficient power. So too for political views and expressions of culture, as well as more mundane concerns such as taste and preference. Those who try to shut down freedom of expression seek, by their own logic, to shut down even their own conversation.
The magazine Charlie Hebdo had, and will continue to have, its own special place pricking the over-inflated egos, beliefs and opinions of many. It will offend and it will annoy. As well as to entertain, that is its job. Such an exercise is a necessary curative for all the pompousness, self-importance and, often, ridiculousness that characterizes a large part of the world in which we live.
Part of that deflating exercise includes making fun of organized religion, which in turn includes Islam. Indeed, it is the more extreme iterations of Islam, such as that propagated by Salafi jihadists, which is most in need of deflating. That this interpretation of Islam regards violence as legitimate only further highlights the need to satirise it.
The attack on Charlie Hebdo, then, was not, as one of the attackers claimed, ‘avenging the prophet’. It was not even an attack on democracy, as claimed by some political leaders. The attack on Charlie Hebdo was an attack on the very condition of being human.
As for the proposition about belief systems, re-phrasing Voltaire, I may – or may not – believe what I say. But as a human I, and everyone else, have the right to say it. To shy away from that is to let terrorism win.

2004 Indian Ocean tsunami: how Aceh recovered, and Sri Lanka declined

The 2004 Boxing Day tsunami that left almost a quarter of a million people dead and led to the world’s largest emergency aid program had a profound impact on two wars being fought in the region.

In Aceh, Indonesia, it contributed to the end of three decades of bloody conflict; in Sri Lanka, the tsunami ultimately led to the deaths of tens of thousands.

In Aceh, the Free Aceh movement (Gam) had been fighting the Indonesian government for a separate state. Gam retreated to the mountains following a declaration of martial law in 2002 and the escalation of the war by the Indonesian military.

In Sri Lanka, The Liberation Tigers of Tamil Eelam, better known as the Tamil Tigers, had similarly been fighting for a separate state in the north of the country. As a result of a 2002 Norwegian-brokered ceasefire, they managed to establish a semi-autonomous zone in the north of the country, but both the Tamil Tigers and the Sri Lankan government had withdrawn into increasingly hard line positions.

A dispute over whether tsunami emergency aid funds should be autonomously administered by the Tamil Tigers in their area of control meant that already high levels of distrust were further entrenched. Shaky movement towards a negotiated settlement drifted.

By contrast, in Aceh, Gam declared a unilateral ceasefire. There was a sense that assisting the people to rebuild had to take priority. The newly elected Yudhoyono administration put out feelers towards a possible resolution.

While opposing groups in Sri Lanka squabbled and retreated from each other, the international community applied pressure to both Gam and the Indonesian government to find a way forward.

Aceh’s peace talks began in Helsinki in January 2005 and, over the next six months, worked towards a compromise in which Aceh could have a high degree of political and economic autonomy if it remained within Indonesia. Indonesia’s own democratisation was hugely important to this, with the principle of local political representation clinching the deal.

With only animosity in Sri Lanka, the Tamil Tigers made the fatal error of stopping Tamils from voting in the 2005 presidential elections, which saw Mahinda Rajapaksa achieve the slimmest of victories, of 50.29%. Had Tamils voted, the more amenable Ranil Wickremesinghe would likely have won and negotiations could have resumed.

Rajapaksa’s victory ensured that a return to confrontation was all but inevitable. The Tamil Tigers own leader, Velupillai Prabhakaran, was equally combative, retaining unrealistic faith in the Tiger’s ability to defeat the numerically superior government forces.
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As late as 2007, there remained a chance for a negotiated settlement in Sri Lanka, but this ended when government forces resumed their attacks. By early 2009, the Tamil Tigers had been routed, at the cost of some 40,000 lives, with Sri Lanka’s ethnic division continuing as a running sore in the country’s body politic.

In Aceh, meanwhile, post-tsunami rebuilding continued, and the province assumed something approximating normalcy for the first time in the modern era. The peace agreement led to local elections, comfortably won by former Gam combatants.

The devastation caused by the tsunami created organisational, economic and political pressure in two deeply troubled regions. In one, these pressures highlighted differences, drove opposing sides apart and ultimately led to a further human catastrophe; in the other it pushed opposing sides to seek compromise.

The outcome in Sri Lanka has since served as a model for how to militarily crush a separatist movement, but remains globally deplored by human rights advocates. The outcome in Aceh has, by contrast, been viewed as a model for using democracy to achieve peace.

The 2004 tsunami created two choices for achieving a genuine peace in the areas it affected. Only one of them can be said to have been successful.

http://www.theguardian.com/commentisfree/2014/dec/29/2004-indian-ocean-t...

Deakin (Students) Speaking - Practical Legal Skills Training and the Vis Moot

In my previous post on Deakin Speaking, I commented on 10 years of involvement - as a student, judge and coach - with the Willem C. Vis International Commercial Arbitration Moot in Vienna, and the Vis (East) Moot in Hong Kong. In that post, I foreshadowed three further contributions to Deakin Speaking, addressing the Vis Moot. This is the first of those contributions - Deakin (Students) Speaking - on the topic of practical legal skills training and the Vis Moot.

Reflections on 10 Years with the Willem C. Vis International Commercial Arbitration Moot

On Wednesday 5 November 2014, students from the Deakin Law School commenced their preparations for the 2014 / 2015 Willem C. Vis International Commercial Arbitration Moot in Vienna, and its sister competition - the Vis (East) Moot in Hong Kong.  Deakin Law School has a distinguished history in the event - taking part each year, in both Vienna and Hong Kong, that it has run.  This year's event, however, has personal significance as well - marking a decade of my own involvement, in various forms.  Having taken part as a student, judged practice rounds for the Deakin Law School for two years, and now coaching my seventh season - what might one say, on reflection, about 10 years with the Vis Moot?

Addressing male violence at night requires a cultural shift

 

The recent killing of 21-year-old Melbourne University student Joshua Hardy is another tragic story of unprovoked, alcohol-fuelled male violence in our community. It is an issue that has animated significant debate in politics and the media in recent years and has motivated the introduction of a range of criminal justice and licensing reforms nationally.

In the wake of Hardy’s death, questions have again arisen about what the victim could have done to prevent the use of lethal violence. For example:

Don't expect Indonesian support for towbacks

Shadow immigration spokesman Richard Marles' thought bubble on the success of the Federal Government's "turn back the boats" policy on Sunday has raised the prospect of bipartisan unity on a policy that has angered Australia's large near neighbour, Indonesia.

The appointment of a career diplomat, Retno Marsudi, as Indonesia's new foreign minister is only likely to formalise Indonesia's opposition to Australia's controversial asylum seeker policy.

Indonesia's previous foreign minister, Marty Natalegawa, was blunt in his criticism of Australia's policy of turning back asylum seekers attempting to leave Indonesia for Australian waters. He was especially forthright about the issue when it included Australian ships entering Indonesian territorial waters.

to read more: http://www.abc.net.au/news/2014-10-27/kingsbury-turning-back-the-boats/5...

No good time for Xanana Gusmão to let go

Timor-Leste’s prime minister, Xanana Gusmão, has deferred his decision to step down as his country’s leader until April 2015. He had announced earlier this year that he intended to leave office firstly in September, then in October. He has since said that he wishes to stay on to oversee negotiations with Australia over a resolution to the Timor Sea dispute.

http://www.eastasiaforum.org/2014/10/25/no-good-time-for-xanana-gusmao-t...

Hong Kong’s pro-democracy campaign in for the long haul

If one was to believe the reporting on Hong Kong’s pro-democracy demonstrations, especially the reporting in Hong Kong, one could be mistaken for believing that it was all but over. Nothing, however, could be further from the truth.
There is no doubt that the numbers in Hong Kong Central have diminished, especially during the day, but they continue to bounce back at night, when ordinary Hong Kongers have finished their day’s work or study. So, too, at the Mongkok protest site in central Kowloon.
At both sites, traffic continues to be blocked and the barricades erected from street furniture over a week ago remain entirely intact. The few police roaming around appear to have no interest in taking down the barricades, even though the protesters are hundreds of metres away.
There was some hope that talks scheduled for Friday would make some headway towards resolving the protests. But no-one on either side believes there could be any meaningful movement on the protesters’ central demand to freely nominate and elect their chief executive in 2017.
Despite believing they were promised such an outcome in 2012, more recently the residents of Hong Kong were told they could vote only for a candidate that had been vetted by a pro-Beijing committee.
There is a view, too, that most Hong Kongers, as they call themselves, are sick of the disruption to their daily lives. Shopkeepers are reported to be complaining about loss of business.
Yet little business is disrupted and what is more evident is the goods that have been freely given by businesses all over Hong Kong to support the protesters. There have been donations of crates of water and other drinks, free food, tarpaulins and even tents and other forms of shelter, along with first aid supplies stockpiled at emergency care centres for those protesters who were tear-gassed or attacked by thugs believed to be paid for by interests close to the governor.
What is clear is that, rather than the pro-democracy protests just fading away, they have polarised Hong Kong society. There are very few Hong Kongers who now do not have a strong opinion on the issue.
Broadly speaking, the city’s business elites tend to be pro-status quo, with the working class. tending to be more divided. Hong Kong’s large and influential middle class, however, appears to be strongly pro-democratic. Unofficial but reliable surveys undertaken by a respectable institution (which cannot be named in what is a subtle climate of retribution) says that between 60 and 70 per cent of Hong Kong’s resident are in favour of having a freely nominated and elected chief executive.
Against these pro-democratic tendencies is not just Hong Kong’s business elite but, of course, the government of China. No matter the extent to which Hong Kongers like to think of themselves as a people and a place apart, they are Chinese and Hong Kong is a part of China.
The Chinese government believes it cannot afford to allow Hong Kong’s pro-democracy protest to be successful. Should it be so, it will show the rest of China that peaceful street protests can produce political change.
China may have moved on from the bad old days of the Tiananmen Square massacre, or it may not – that is yet to be seen. But the Chinese Communist Party has no intention of relinquishing its very considerable grip on the machinery of the state, and the considerable economic opportunities that come with such control.
Yet the regime in Beijing must tread carefully in Hong Kong, given it is China’s largest source of investment funds and, equally, China is now a major investor in Hong Kong.
Should Hong Kong become unstable and its economy dive, that would be financially disastrous for all involved. And in the end, with China having given up any pretence to being ‘communist’ and Hong Kong being one of the world’s most mercantile cities, money appears to be what is most important.
Yet Hong Kong’s students and others at the protest sites object to being locked in what they consider to be a gilded cage. Rather than damaging business, they believe greater representation and accountability will enhance business. And, more importantly, they increasingly see having a representative and accountable political leader as being a good in its own right.
There is a strong chance that Hong Kong’s public pro-democracy movement will wind down. But it is at least as likely that it will also revive. There is now a common expectation that pro-democracy protests will now come in waves, larger and more frequent as the city moves towards the 2017 elections.
A compromise is possible, saving political face for both sides. But such a compromise will be difficult to achieve.
The alternative is that, the closer the 2017 election comes, the higher the stakes will be for the people of Hong Kong. The stakes, too, will be increasingly – perhaps precariously - high for the government in Beijing.

High Court of Australia rejects protection of freedom of association

In the recent case of Tajjour v New South Wales [2014] HCA 35, the High Court was asked to consider whether New South Wales laws prohibiting ‘consorting’ with convicted offenders infringe the right to freedom of association, protected by an inferred right in the Australian Constitution or by the application of the International Covenant on Civil and Political Rights (ICCPR).

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