In The News - 30 October

The decision was handed down by the Constitutional Court today. The mood was tentatively hopeful but that was quickly dashed at the beginning of the hearing. The Court immediately rejected the grounds of appeal for the three Australians, stating that foreigners could not enact provisions of the Indonesian Constitution.

This wasn't a killing blow, however, and there was still hope that the appeal would be carried by the two Indonesian women joined to the appeal.

A few hours later the judges handed down their final decision. It wasn't what I was hoping for and it was nothing short of disappointing and at best it wasn't crushing. It was ruled the right to life made out in the Constitution was not absolute and would bend under considerations of the damage done to their society by drugs. The decision was split 6-3.

That's where there is perhaps the greatest progress to come from the case. 1/3 of the bench in favour of the proposition is certainly more than just a modest amount of support. Also, there was a recommendation by a majority of the judges to create a 10 year probation of good behaviour. Julian McMahon summarised it as:

"Instead of just going out and pursuing the death penalty they are really saying... we hope that in the future the law can be changed and that there can be a 10-year probation period so that if after 10 years you've reformed, then your penalty can be reduced to a 20-year penalty,"

At first I thought this would be a strange outcome and I still don't quite understand the intricacies of it. Will it mean that lawyers will have to do everything in their power to keep their client alive for 10 years? Wouldn't this encourage time wasting and vexatious appeals? I'm not too sure, but it's certainly encouraging and shows that they are very focused on some sort of law reform in the area. And like a friend of mine said earlier, you can't change a country's values over night.

The next step is to follow on with the planned Judicial Review, albeit without the support of the majority of the Constitutional Court. This will be an incredibly challenging stage as it will essentially involve asking the Court to reconsider their previous decision, however thie time it is done with not only three justices' minority support, but also an Indonesia with a less dogmatic Attorney-General and 2 years of political and social change.

There is currently another appeal taking place for some others of the Bali 9 on death row through Judicial Review. The outcome of that case will be crucial in determining the success for Sukumaran, Chan and Rush.

Hopefully after the election, when there is a less pressure to say what everyone wants to hear, the Australian Government will be able to form a consistent approach in support of the Bali 9. On that note, the executions of the Bali Bombers seems to be imminent. If it occurs before the election you can be sure it will be twisted every which way for political purposes and so I really hope that there is as little conditional support for their executions as possible. Ideally there could be some really strong resistance by the Australian Government, even if just to tell them that we do not support their executions. Whatever happens it will have massive consequences for Australians on death row in Indonesia.

"I can't help that, I can't help that"

So it's all over the news in Australia at the moment, the death penalty. The Attorney General in Jakarta has softened on the issue and has agreed to enforce whatever verdict the Constitutional Court of Indonesia hand down. This could mean, at best, that the the Indonesian Constitutional right to life, Undang-Undang Dasar cl. 28 (i), will be upheld and applied to not only citizens but foreign nationals and that it will apply retrospectively. I have been saying for months to keep your eye out for this decision, and the lawyers are telling me that it should come any minute now, but no one can really say exactly when it will come.

This entire issue comes at a painful time for many Australians with the anniversary of the bombings. Perhaps with the assurances of the Attorney General in Jakarta that the Bali bombers will not be executed soon will mean that some respite on the issue can be given to those in mourning. When both political parties are fighting tooth and nail for this next election it perhaps isn't helpful that the issue is being thrown around carelessly, both by Howard and Rudd. I think it was a real fear amongst like-minded abolitionists that the Bali bombers would be executed on the 12 October as a symbolic act of retribution.

However, don't let me tell you that this isn't something that needs to be discussed urgently. If the Indonesian government is showing signs of slowing then we should re-double our efforts.

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Beyond the political issues that are at hand, I found something incredibly touching and honest in a statement to The Age from, Dave Byron, the father of one of the victims of the Bali bombings, Chloe Byron. To have lost his 15 year old daughter must have been no doubt traumatising and it is tragic to see that he still suffers so greatly from the scars of his loss. He is calling for the death of the Bali bombers to "protect" his daughter and he is also asking for political rhetoric on the issue to stop.

This really struck me though...

"Realistically, for me, it is just vengeance and vengeance isn't good, but I can't help that, I can't help that."

The victims of capital punishment don't stop at the death of the condemned. The family and friends of the condemned suffer for the rest of their lives from images of the execution and the loss of their loved one. It must be unbearably traumatic to watch a State slowly and systematically put a loved one to death. The prison wardens are put in a situation where they witness death every week. And finally, the other side of the spectrum, the families of the victims who are left to indulge their urge for revenge in the blood of the condemned.

There is book I read a year ago called "Don't Kill In Our Names" which examines personal stories of loss at the hands of a criminal which ultimately ending in forgiveness, sometimes after their execution and sometimes before. The book depicts some incredibly difficult and moving journeys towards ultimately quelling the urge for revenge. One quote from the book is particularly applicable,

"To say that vengeance and closure can exist together is a contradiction... the other side of vengeance is anger and as long as we hold onto our anger, our grieving isn't over."

Dave Byron wants to protect the memory of his daughter by exacting revenge on the three murderers who took her away from him. Perhaps we should also try protecting him from something he "can't help".

Quote of the day:

"Revenge is a confession of pain."

-Latin proverb

In The News - 8 October

Finally there is a strong voice coming from Australian politics that it is totally and unashamedly opposed to the death penalty in all circumstances. Robert McLelland of the Australian Labor Party has made it clear that under no circumstances, here or abroad, will a Labor Government condone State sanctioned executions. This means both Saddam Hussein and the Bali Bombers.

Watch closely now as John Howard gives a text book definition of double standards. He would have us believe that we, as a Nation, prohibit the death penalty in Australia and from being exacted upon Australians overseas, yet, we are entirely in support of the execution of foreign nationals in their own countries. This sort of approach smacks of, at worst, racism and at the absolute best, hypocrisy.

To think that somehow Indonesian lives are worth less than the lives of Australians overseas seems quite blatantly racist. Perhaps it is driven by ideas of sovereignty, that Indonesia has a right to enforce its laws on its own constituents, but leave ours out of it. For starters, most Indonesians are undoubtedly more appalled by drug traffickers than terrorists. Drug trafficking has been a massive economic and social burden on nearly all the South and East Asian countries. Drugs are a far greater scourge than terrorism and so the disgust is understandable. Watching Howard suggesting with a straight face that the lives of Australians are to be held to a higher standard than the lives of foreigners is completely in conflict with any attempts to try to save the lives of the Bali 6. I understand that as our Prime Minister he is supposed to have our best interests at heart, but if he was truly interested in protecting Australians then why would he so cooly condone the use of capital punishment in a country where 6 Australians face that very fate.

"What other countries do is ultimately a matter for those other countries..."

What messsage does this send to Indonesia? When we suggest that the use of the death penalty is degrading and inhuman yet we support it in some cases. It completely undermines any attempt by other Australians to saves the lives of the Bali 6. John Howard's hate mongering for the Bali bombers is disgusting and is quite frankly racist and hypocritical.

"I find it impossible to argue that those executions should not take place when they have murdered my fellow countrymen and women."

I simply don't understand what line John Howard is drawing to justify the Bali bombers' execution. It could not possibly be the act of murder which he is condeming as worthy of death, for surely in such a case Martin Bryant should be executed for the Port Arthur Massacre (barring his possible psychological problems). So if it isn't the crime, then all I can isolate this to is the race and nationality of the offender. John Howard feels that the life of an Australian is worth more than the life of an Indonesian, quite simply. This sort of approach is entirely consistent with his xenophobic foreign policy in regards to refugees and asylum seekers.

We are a nation either absolutely opposed to the death penalty or we are a nation who support it. If we want to have any chance of helping to encourage the legal systems of our neighbours to consider abolishing capital punishment then it is imperative that we form a united and unconditional opposition to the death penalty. We can't come to the steps of Indonesia asking for them to spare the lives of Australians simply because they are exactly that, Australians.

Prime Minister, should those 6 boys be executed in Indonesia then the blood is on your hands.

I can only pray that a Labor government can hastily undo the damage you have already done to the prospects of saving their lives.

Values At Any Price

That title doesn't really make sense, but who really cares?

I'm now officially travelling to America for 3 months to do an Internship. I'll be doing a placement as a volunteer with the Louisiana Capital Assistance Center in New Orleans, leaving on 27 November '07. I always thought New Orleans was the capital of Louisiana but I was surprised to find out that it's a city called Baton Rouge. The capital is more industrial and less populated than the Home of Jazz though! I think the center I am working in is on the border of the French Quarter which was saved from Hurricane Katrina because it rests on an elevated part of the land.

I applied for the Internship early this year and went through a huge application process of forms and interviews etc. My final interview was with Richard Bourke and if you remember he was the member from Reprieve who held the lecture on the death penalty at Melbourne University which first got me to really engage with the issue. Richard is quite famous amongst the interns for being able to systematically break you down during the interview process and challenge every reason you have for opposing the death penalty. I haven't met anyone who said their interview with him was a cake walk. Well, he did exactly that to me and I actually came away from the experience quite humbled.

The point he was trying to emphasise to me during the whole interview was that the only thing that separates me from anyone else who supports the death penalty are my values. I'm not answering to some higher moral calling that other people are to simple or too barbaric to understand. Now, that's not to say that I can't believe that the death penalty makes its constituents more brutal and unfeeling, but its an understanding that it does not necessarily make them bad people. And this is something that I realised I had never really considered. By acknowledging that the only difference between myself and a supporter of the death penalty are our values, not some inherent goodness or badness within us as human beings. If I had been born in Houston Texas to a typical family then it is more than likely that I would have been an avid supporter of the death penalty because that is the status quo I have been brought up in.

That sort of understanding and humility when dealing with your own values on any subject is actually something that is incredibly important. You can't win an argument with someone if you treat their standpoint as barbaric and inhuman, and you certainly won't convert them to your opinion. But if you can come to understand that it is something as simple as your values that separates you and that you might just have easily carried their values then you can approach the issue with the sort of humility that you need in a conflict of opinion.

Not only that, but it is also central to the issue of capital punishment and revenge. The systematic demonisation of people on death row is not uncommon at all. By dehumanising the condemned we are able to very simply classify them as unfit to live. Much like Camus' Outsider, if someone flaunts society's most basic standards and mores then they become a "heart that is so empty it threatens to engulf society." And this is where the basic concept of understanding comes into play. Sentencing someone to death shows an inability or unwillingness to understand what drives the person to do what they do, which would in turn require you to acknowledge them as a human. To acknowledge that, however, requires humility because it is in an uncomfortable thought to so closely associate yourself with someone that does not carry your same standards or values. Humility is the ability to admit that you have no right to say whether that persons actions have forfeited their right to life, or that you are any more of a human being than they.

A good example of this can be found in one of the greatest atrocities in human history, the Jewish genocide. Hitler and Himmler were not the men in the field murdering millions of Jews, they simply imparted their views and values on the men and women who would listen. And they did listen, because Hitler was an incredibly captivating and zealous speaker who could rouse crowds of thousands into a frenzy of passion. One of my school teachers was at a Nuremburg Rally and he was so overcome by the mass of people screaming "Zeig Heil" that he couldn't help but do the same through a stream of tears. So the question is, are the police and soldiers who instituted Hitler's Final Solution to the Jewish Question normal human beings? Consider this passage from Daniel Goldhagen's "Hitlers Willing Executioners" that describes the massacre of Jozefow where the victims were taken from the city to the outlying woods and executed one by one to prevent a panic amongst the masses who waited in the town center.

“The walk into the woods afforded each perpetrator an opportunity for reflection. Walking side by side with his victim, he was able to imbue the human form beside him with the projections of his mind. Some of the Germans, of course, had children walking beside them… Did he see a little frail girl, and ask himself why he was about to kill this little, delicate human being… After the walk… the Germans had to raise his gun to the back of the head, now face down on the ground, that had bobbed along beside him, pull the trigger, and watch… the little girl, twitch and then move no more.”

To understand what could drive human beings to such lengths is a question that is both difficult to tackle and impossible to comprehend fully. Some people would suggest that the soldiers were systematically brutalised to a point that they were inhuman, but I would counter that brutalisation is an incredibly human response to an excess of violence. Much like our ears are able to adapt to frequent loud noises, or our nose is able to stop receiving certain scents, so to is the brain able to adapt to brutality. What could possibly be more human that such a response? If I was a normal German 22 year old in 1942 I have very little doubt that I could have been in a similar position. Most people would like to think they would never be capable of mass murder and given our upbringing and values it is likely we would be incapable. But change the context in which we live and you change our values and thus we are capable of completely different actions.

If you can understand that you are not dissimilar to those that carry different values to yourself then you are far more able to comprehend what drove them to do whatever they did and the beliefs that they held at the time. A quite famous historian, Browning, once said that "Explaining is not excusing; understanding is not forgiving". By acknowledging the human elements of any action or belief, rather than labelling it as inhuman, we are able to explain and understand the why and the how, and so we are better able to deal with it in the future. Perhaps if we had acknowledged that normal human beings are capable of genocide the International community would have been quicker to acknowledge it in Rwanda.

So, my hope is that by understanding that what separates me from a supporter of the death penalty in Louisiana is actually very little, I can perhaps present an alternative set of values and put them into practice in a way that will benefit my cause.


Quote of the day:

"We must strive every day so that this love of living humanity will be transformed into actual deeds, into acts that serve as examples, as a moving force."

-Ernesto "Che" Guevara

In The News - 30 September

The Bali Bombers are to be executed now that their pleas for clemency to the Supreme Court of Indonesia have been refused. What drives a heart to become so cold and so callous that it conceives a plan to murder hundreds of innocent people

Amrozi, the smiling assassin they called him, didn't show any remorse. He laughed when they handed down the death sentence. It's for that reason that he should be executed because any sort of being that shows no remorse for cold blooded mass murder shouldn't be allowed to exist. But hold on, Texas alone has executed around 50 people this year. What could be more cold blooded than a state sanctioned execution. Who is setting the examples for how to properly deal with human life? If the Western world chooses to continue to disrespect the right to life then how can we expect the same in return.

When I see photos of Amrozi smiling away at the cameras I feel anger and frustration. It's difficult to comprehend and to be quite frank, it's quite scary. To look death, the great equalizer, in the eye and smile is something that few of us could understand. I think it's what makes suicide bombers so confronting to Western society. That sort of single minded devotion to a cause is something that the freedom loving people of the Western world could never demonstrate. At the same time you have to understand what is driving them to do what they do. Look for the underlying reasons and you no doubt find alot of pain and suffering that has hardened their hearts and made them forget their compassion.

I read in the newspaper that the victims' families were horrified to find out that Amnesty International is pushing for their executions to commuted. At a time when 6 Australians are on death row in Indonesia, Australia's stance couldn't be more crucial. Do these family members realise that by "vindicating" their lost loved ones, they are effectively condemning 6 young Australians to death as well? I wouldn't say this is selfish, and I wouldn't expect them to understand the point I'm trying to make and I guess that is the nature of grief.

"There certainly couldn't have been anyone from Amnesty International walking through the morgue like I did, trying to sort through body parts trying to identify my mates."

An execution isn't going to make those images go away, nor is it going to soothe the pain. If you hold onto your anger that hard then you are bound to lose your humanity as well.

I'm not going to suggest that they shouldn't be executed because it's what they want. I don't care if they become Martyrs or if they really do get 50 black-eyed virgins. I'm not interested in seeing them rot in a prison for the rest of their lives. Don't get me wrong, I want them to be punished for their crimes, but it simply doesn't need to be death.

Who are we doing it for? The victims? It's not going to bring them back. The family? Perhaps, but should they left to cling on to their anger and grief to the point that another corpse is added to the mix? It might be for the sake of civilised society, but it's not going to deter more terrorism and it will certainly make us that little bit more cold hearted. One step closer to what we are running from.

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A decision on the Bali 9 Constitutional Appeal in Jakarta is imminent. If successful mandatory death sentences for drug traffickers could be ruled unconstitutional and the Bali 9 resentenced.

The Body Is The Last To Sigh

Since the execution of Ronald Ryan in Australia we have been a country strongly opposed to the death penalty. The collective memory of those who were alive at the time of his hanging is so influential that many would equate it as the single greatest turning point in political and social thought in Australia.

I recently attended a panel discussion, organised by Reprieve Australia and hosted by DLA Phillips Fox, that involved a speaker by the name of Brian Morley, who was one of the journalists that was invited to witness Ryan's execution. He spoke at length about the political background of Ryan's execution, the massive protests and the desperate attempts of his lawyers to stay his execution. He told us about the invitation to witness the execution that he received, and recalled that it seemed almost like a cocktail party invite. He remembers sitting in the press room with the other journalists, smoking cigarettes, drinking coffee and talking feverishly about the news they would soon have to report on. However, his tone of voice changed drastically when he spoke of what he witnessed. After his hanging there was almost perfect silence in the press room, except for one reporter who was throwing up in the corner. Some men in the media room have since passed away, some committed suicide and the others refuse to speak of what they witnessed. Brian Morley told us this story as he choked back tears; "No one should suffer the way that man suffered." It was incredibly powerful watching a man like Morley, well into his 60's with a sturdy build and strong presence, failing to hold back the tears spurred on by a single moment in his life that had long past.

His pain was emphasised by the words of another speaker, Andrea Durbach, who told about her nervous breakdown nearly 10 years after she saved a large group of African men sentenced to death for the murder of only 1 man based on the doctrine of "common purpose". Even though she had been successful, she was so torn by the experience that she suffered from post-traumatic stress. A friend of hers told her that "The body is the always the last to sigh..." and that it was simply her body catching up with her mind. That her experiences could make such an incredibly powerful impact on her life 10 years later only serves to highlight the mental anguish she must have buried during the appeal process.

The daughter of George Hodson, the prison officer shot and killed by Ronald Ryan during his escape, then also spoke of the great pain the entire event had caused her over the last 40 years. She spoke of her forgiveness for the family of Ryan, specifically his daughter, and about the suffering she must have gone through when her father was executed. It seemed so clear and so tragic what these two women had in common. They had both lost their fathers at a young age and the both understood one another's suffering. The consequences of their fathers' deaths, although directly linked, could not have been more different, yet the two women were united through their pain. Both of them realised that all Ryan's execution had achieved was to compound the suffering of others, and do nothing to alleviate their own, while even Hodson and his colleagues still suffer to this day.

As we move further and further away from 1967, and as that day slips back into the recesses of our memory, we are more likely to forget the reasons behind why we are a nation that holds the right to life as irrevocable.

Austin Sarat puts the question to us, "We must ask what the death penalty does to us, not just what it does for us."

What is the death penalty doing to us?

It is closing our eyes to understanding the person, the human being, behind the crime. By holding on to our anger and seeking the ultimate revenge against a crime committed against us we are unable to understand the pain we are suffering. As Freud says, there exists a "time lag between experience and understanding", something that explains what occurred to Andrea Durbach and Brian Morley.

By executing it's criminals a community is denying itself the chance to understand what caused the person behind the crime to do what they did. "State killing offers us a way out. Those acts are "their" fault, not our problem."

But it is not simply affecting our understanding but it is also brutalising our society and is essentially a fearful aversion to one kind of violence which results in a fearful embrace of another. The death penalty leaves a trail of suffering behind it, causing unimaginable grief in not only the condemned but also his family and friends. An execution is a punishment that goes beyond simply the condemned man. As Albert Camus observed, "The relatives of the condemned man then discover an excess of suffering that punishes them beyond all justice... the brief moments spent with the condemned man, the visions of the execution are all tortures."

It's a punishment that spreads its barbs deep within society, far beyond simply those who are proximate to it. I don't think I could ever word it better than the lawyer from the landmark American death penalty case, Illinois v Leopold and Loeb.

(Synopsis: Two rich Jewish boys who were both Law students believed that their superior intellects meant that they were some sort of Nietzschean supermen who were capable of committing the perfect crime. This is the epitome of cold blooded, motiveless murder. They killed for the thrill of proving their superior intelligence.)

If these two boys die on the scaffold, which I can never bring myself to imagine,--if they do die on the scaffold, the details of this will be spread over the world. Every newspaper in the United States will carry a full account. Every newspaper of Chicago will be filled with the gruesome details. It will enter every home and every family .

Will it make men better or make men worse? I would like to put that to the intelligence of man, at least such intelligence as they have. I would like to appeal to the feelings of human beings so far as they have feelings,--would it make the human heart softer or would it make hearts harder? How many men would be colder and crueler for it? How many men would enjoy the details, and you cannot enjoy human suffering with out being affected for better or for worse; those who enjoyed it would be affected for the worse.

What influence would it have upon the millions of men who will read it? What influence would it have upon the millions of women who will read it, more sensitive, more impressionable, more imaginative than men (I'd like to add here that this case is from the early 1900's, so you'll have to forgive this potentially credibility destroying throw in). Would it help them if your Honor should do what the state begs you to do? What influence would it have upon the infinite number of children who will devour its details as Dicky Loeb has enjoyed reading detective stories? Would it make them better or would it make them worse? The question needs no answer. You can answer it from the human heart. What influence, let me ask you, will it have for the unborn babes still sleeping in their mother's womb? And what influence will it have on the psychology of the fathers and mothers yet to come? Do I need to argue to your Honor that cruelty only breeds cruelty?--that hatred only causes hatred; that if there is any way to soften this human heart which is hard enough at its best, if there is any way to kill evil and hatred and all that goes with it, it is not through evil and hatred and cruelty; it is through charity, and love and understanding.

I don't think I could ever put it better than this. Upon hearing the evidence regarding the cold-blooded nature of the murder Darrow, the barrister, became infuriated.

Cold-blooded? Why? Because they planned, and schemed.
Yes. But here are the officers of justice, so-called, with all the power of the State, with all the influence of the press, to fan this community into a frenzy of hate; with all of that, who for months have been planning and scheming, and contriving, and working to take these two boys' lives.
You may stand them up on the trap-door of the scaffold, and choke them to death, but that act will be infinitely more cold-blooded whether justified or not, than any act that these boys have committed or can commit.
Cold-blooded!
Let the State, who is so anxious to take these boys' lives, set an example in consideration, kindheartedness and tenderness before they call my clients cold-blooded.

When we fail to understand, when we refuse to explain, when we hold onto our anger, when we push towards revenge, we serve only to perpetuate the suffering we try to protect ourselves from.

Quote of the day:

"There is violence at both ends, there is much death, there is tremendous suffering, but there is also a person at the center who you will not be able to dismiss as a monster or a demon."

-Austin Sarat

In The News - 7 June

John Forbes has been found not guilty on appeal in Sudan.

This is great news for the poor guy, who described the experience as mind numbingly terrifying. I think that really goes to show just how difficult it really is to live with the prospect of an impending execution. I can't imagine how relieved he must feel.

Anyway, I was speaking from ignorance more than hope when I said "He might even be innocent" but there you have it. To be honest, a few days after I made that post I was reading a newspaper article that was outlining his charges, and it seemed pretty outrageous at best.

In some other news, 3 of the Bali 6 have been forbidden from making a statement before the Supreme Court hands down their decision.

Keep your eyes on the headlines over the next month in regards to the Bali 6. There should be a decision handed down by the Supreme Court very soon regarding the appeals for the above 3. On the other side, the Constitutional Court will make a decision on the appeal of the other 3 within a month I'm sure. Geez, I'm actually getting butterflies.

Till next time.