Sian Powell, Jakarta correspondent December 03, 2005
NGUYEN Tuong Van's execution in Singapore yesterday morning will shine a revealing light on capital punishment in Asia and on Australia's failure to condemn all death sentences in all cases.
In the months leading to his execution, attention focused on Australia's diplomatic and judicial efforts to prevent Australians following in Van's tragic footsteps. Twelve Australians are on trial across the world on charges that carry the death penalty. A further two have already been convicted and await their fate.
Yet the effort to block this terrible march to execution has been hampered, activists say, by the Australian Government's tacit approval of the death sentence for the Bali bombers and those convicted of bombing the Australian embassy in Jakarta.
Although the Australian Government recently won reprieves for two Australians sentenced to death in Vietnam, its position on the Bali bombers will have far more resonance in Indonesia, where nine Australians are on trial for heroin smuggling, a crime that carries the death penalty.
Legal experts note, too, that there is room to improve the fate of those who will be arrested in the future. Agreements on consular access could be overhauled to ensure embassies are immediately told of the arrests of all Australians. And Australia could recommend expert lawyers rather than simply providing a list.
Singapore has perhaps the world's highest rate of executions per capita. Serious drug convictions carry mandatory sentences, giving judges no latitude for leniency. Clemency is rare. Death sentences have been commuted to life in prison perhaps six times since Singapore's independence, activists say. Eleventh-hour pleas for Van's life left the Singapore Government unmoved.
Amnesty International's Tim Goodwin says Singaporeans may doubt the strength of Australia's opposition. The Straits Times, a newspaper known to publish the Government's line, has questioned Australia's abhorrence of the death penalty, Goodwin says, noting it seems to apply only to Australians on death row, not to those of other races, such as the Bali bombers.
"Our concern is with the Government's approach. There must be universal and principled opposition to the death penalty," Goodwin says.
The death sentences for Bali bombers Mukhlas, Amrozi and Imam Samudra won tacit approval in Australia, from the Prime Minister and the Foreign Minister among others.
"It's not, of course, the policy of the Australian Government to support the death penalty, but in these particular circumstances we won't be making any representations against the sentence," Foreign Minister Alexander Downer said following Samudra's death sentence in 2003.
These sentiments were echoed after the sentences of Ahmad Hasan and Rois over the Australian embassy bombing in Jakarta last year. "Whatever we may think about the death penalty, the fact that these people have been convicted is a very good thing," Downer said when Hasan was sentenced to death this year.
While the stance probably played well in ordinary Australian living rooms, it may prove a hindrance in the battle to win clemency for the Australians now on death row.
Indonesians have long memories for Australian hypocrisy and most Australian politicians know how sensitive Indonesian opinion can be; John Howard warned drugs convict Michelle Leslie to keep her Bali story to herself in case she influenced the trials of other Australians in Indonesia. Eight Australian men and one Australian woman - the so-called Bali nine - will almost certainly be convicted for heroin smuggling and perhaps sentenced to death.
Indonesia has been very tough on drug crimes recently. Two Thais and an Indian were executed for drug crimes last year in Indonesia, and there is a growing clamour for ever-tougher punishments. Agitators picketed drug smuggler Schapelle Corby's trial in Bali, demanding her execution. If the nine Australians are spared, there will be an outcry in Indonesia, and there is little doubt Australian reaction to the Bali bombers' death sentence will be revisited.
Kevin O'Rourke, from the NSW Council for Civil Liberties, says it's likely Australian politicians will regret their failure to condemn the Bali bombers' death sentences.
"Those comments, particularly, were unfortunate to say the least," he says. "Anything that looks as though Australia is giving tacit support to the death penalty should be avoided."
The death penalty is in retreat across the world but has remained a force in Asia. In Thailand, the death-row population has tripled during the past two to three years. In Indonesia, the Government has resumed executions after a years-long hiatus and the numbers on death row keep growing.
While it may be tempting for politicians to make an exception for terrorists, it should be remembered that 30-year-old Sydneysider Tallaal Adrey is on trial on terrorism charges in Kuwait. If convicted, he is likely to be sentenced to death. Adelaide man David Hicks has been languishing for years without trial in Guantanamo Bay, accused of terrorism. His fate is unclear. Yet another Australian is on trial for murder in Lebanon and could also face execution.
Most Australians facing the death penalty, though, have been charged over drug crimes. Two Australians are on death row for drug crimes in Vietnam, 46-year-old Melbourne man Mai Cong Thanh and 45-year-old Sydney permanent resident Nguyen Van Chinh. Sydneysider Trinh Huu, 56, is on trial in Ho Chi Minh City on drug charges that carry the death penalty.
Addressing slowly mounting Australian anger over Van, Downer has repeatedly said how hard the Australian Government worked to persuade the Singaporeans to grant the young man clemency.
Goodwin agrees the Government made repeated representations to Singapore, especially after public and media pressure began to mount.
However, some activists remain unsure if sufficient pressure was applied early enough and expert lawyers retained in time, which could be a key point, especially with Singapore's mandatory sentencing.
A spokesman for the Foreign Minister says Australia set to work for Van from the start: "Our work began more than two years ago when he was first arrested, when we made representations to the Singaporeans to have him charged with a lesser charge that didn't carry the death penalty. Our representations have continued at the highest level ever since."
However, O'Rourke, among others, has experience of at least one case in which consular representatives weren't immediately told of an Australian's arrest and counsel wasn't appointed until after the accused had signed a statement, perhaps as long as 24 hours after his arrest. Gordon Vuong, then 16, arrested with narcotics in Cambodia, was convicted this year and sentenced to 13 years' jail.
Rod Smith, of the Department of Foreign Affairs' consular division, says an international convention requires all signatory nations to inform consular authorities "without delay" of arrests. "In the Cambodian case you refer to, the embassy was advised of the person's arrest and granted access within 18 hours, and a consular officer was present while he was interviewed by police," Smith says.
O'Rourke believes justice would be better served if the Australian Government developed multilateral protocols that included time frames for the notification of consular officers (for instance, within an hour of arrest), and regulations that all interrogations must wait until a lawyer is present.
He also believes that consular officers should be able to advise on which lawyers should be retained. At the moment all they can do is offer a list of English-speaking lawyers, they cannot advise which are the best.
"It's a bit like handing over the Yellow Pages and saying: 'How about one of these?"' O'Rourke says. "They can't say who is bad, who is good, who will be able to help you."
Kay Danes, who spent 10 months in a Laotian prison on charges that were later dropped and who now works with the Foreign Prisoner Support Service, worries that Van's execution will signal worse to come.
"I'm worried about what happens, and what message that sends to Indonesia," she says. "In my own case, the Australian Government certainly bent over backwards. We [Danes and her husband, Kerry] got tremendous support, but I'm starting to think it depends on what you're detained for. Some aren't getting the same treatment.
"I just wish our Government would have a bit of backbone, negotiate a bit harder. The US went in and cleaned their people out of Thai jails.
"The Brits got theirs out of Guantanamo Bay. What are we? The deputy bloody sheriff?"