The news from Jakarta that four further members of the Bali 9 have joined Myuran Sukumaran and Andrew Chan in being sentenced is disconcerting to many people in Australia.

Irrespective of people’s views about the level of culpability displayed by the Bali 9, there is one unique aspect of their case which heavily militates against the imposition of the death penalty. The Bali 9 were only apprehended after a tip off from the Australian Federal Police. Given that Australian authorities instigated the investigative phase of the Bali Nine case, Australia should have a role in deciding the ultimate outcome of case.

The legal process in relation to any offending behaviour is a continuum, which commences at the investigative phase and ceases when the offender is sentenced.

In relation to transnational offences, there is sometimes an unavoidable and desirable involvement by one country in the legal process of another country. Where one country provides information to another country regarding a crime that is being committed in the second country, the first country has by that fact become involved in that case.

This principle gives Australia a legitimate say in the sentences which are imposed on the Bali 9. Not only would the Bali 9 almost certainly not have been detected without the information being provided by the Australian officials, but ultimately Australian authorities will to some extent be held accountable by Australian citizens for the their fate.

This means that where an offence is detected as a result of international cooperation between two countries, the matter must be resolved in a manner that gives some weight to the legal standards of both countries.

If cases of transnational co-operation sentencing outcomes should, where possible, be achieved that respect the sovereignty and legal and cultural norms of both nations.

Indonesia does not have a mandatory death penalty for drug offences. The most common punishment for such offences is a lengthy term of imprisonment. This is also the most common outcome for such offences in Australia.

This is the only outcome which is appropriate in relation to the Bali 9. It would also ensure that future cooperation between Australian and Indonesian authorities would not be placed at jeopardy as a result of the likely public pressure that would be placed on the Australian government if any of the Bali 9 were executed. This would be an undesirable outcome for the citizens of both Indonesia and Australia.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW