Death penalty Australia's double dilemma

AUSTRALIA - Few Australians have much sympathy for Andrew Chan and Myuran Sukumaran, the two drug traffickers sentenced to death in Bali this week for their failed bid to smuggle more than 8kg of heroin on to the streets of Sydney.

The lives of too many of their young people have been destroyed by drugs and, as innumerable letters to newspapers and callers to talkback radio have pointed out, Chan and Sukumaran could never have been in any doubt of the risk they took in running narcotics through Indonesia.

But the prospect of the pair being taken from Kerobokan jail, tied to a tree in some lonely clearing, and shot by a paramilitary firing squad raises deep and disturbing moral, political and diplomatic dilemmas for a nation that last executed a criminal almost 40 years ago and now opposes the death penalty worldwide.

Their own police provided the information that inevitably led to Tuesday's sentence. Their Government welcomed the death penalty given to the Bali bombers but opposes the same fate for Australian drug traffickers, and public opinion is repulsed by the prospect of executions at home but inconsistently accepts them abroad.

It is a diplomatic minefield that Canberra traversed when Vietnamese-born Melburnian Van Tuong Nguyen was hanged in Singapore in December for taking heroin through Changi airport, despite Australian appeals for clemency.

It is also a minefield that the nation will confront time and again: despite repeated warnings and the appalling reality of executions, there will always be people foolish enough to strap drugs to their bodies or conceal it in their luggage.

Almost all will pass through Southeast Asia, the source of most of Australia's heroin (the Bali Nine consignment originated in Thailand) and where every country but Cambodia compulsorily hangs, shoots or lethally injects traffickers.

Mike Phelan, the head of international operations for the Australian Federal Police and the man responsible for giving Indonesia the information it needed to arrest the Bali Nine, sees no end to the queue of couriers the trade calls "mules".

"It continues to astound me that people attempt importations and move drugs through transit countries knowing that the death penalty exists," he told ABC's Australian Story. "Many young lives get thrown away for the law of quick dollars."

The AFP's role in the arrest of the Bali Nine is among the most sensitive of the issues facing Prime Minister John Howard, who has already weathered a barrage of criticism that has extended even into his own party room.

The AFP caught the first whispers of a major heroin importing run in February last year and, in April, asked the Indonesian police to help uncover the members of the syndicate and the source of their supplies.

Between them, the two forces discovered most of the names and built a remarkably accurate picture of their operation, including details of a previous successful run and another aborted attempt.

This co-operation has become increasingly commonplace, spurred by the determination of all countries in the region to attack drug trafficking and terrorism. Intelligence swapping is required under a number of treaties.

"We make no secret of the fact that the AFP has a policy of forward engagement where we want to stop the crimes at the source and (prevent them) from reaching Australian shores," Phelan said. "That's a practice we will continue to operate within."

What worries many Australians is the fact that the AFP in effect turned over a group of young Australians to a country it knew was likely to execute them, rather than arresting them when they arrived home.

The most emotional response centred on Scott Rush, 20, a drug mule who was jailed for life. His family, through lawyer Bob Myers, vainly asked the AFP to warn Rush of their interest before he left Australia.

"No Australian public servant has the right to expose any Australian citizen to the death penalty," Myers told Australian Story.

Rush and fellow mules Renae Lawrence, Martin Stephens and Michael Czugaj took the AFP to the Federal Court, claiming it had acted illegally by exposing them to the death penalty.

While a large part of public opinion agreed, the court dismissed the action.

The Government has also sidestepped criticism, pointing out that while the relevant treaty with Indonesia contains a clause allowing the Attorney-General to refuse to provide evidence if an Australian was charged with an offence carrying the death penalty, the AFP was free to do as it thought best until charges were laid.

By the time the Bali Nine were formally charged, all the damaging evidence had been gathered.

Phelan is unrepentant: "Basically all transit countries through which drugs come to Australia have the death penalty. The AFP cannot pick and choose who it chooses to cooperate with."

International teamwork in the past few years has significantly reduced the flow of drugs into Australia. The most recent Australian Crime Commission figures, for 2003-04, show the lowest seizures of heroin for a decade.

Refusal to co-operate abroad would outrage regional governments and threaten mutual action against other drug syndicates and terrorism.

Public opinion in Southeast Asia also strongly favours the death penalty for traffickers, with polls in Singapore and Thailand showing support of up to 80 per cent.

In Australia, opinion is more confused. A Morgan poll in November found that while only 27 per cent of Australians favoured the death penalty for murder, 57 per cent believed drug traffickers caught in Asia should die.

Yet in the specific case of Van Nguyen, opinion was evenly divided.

In The Australian, a newspoll found that more than 50 per cent of Australians favoured the death sentence for people convicted of major acts of terrorism.

Howard now has to weigh all these conflicting factors in framing Canberra's approach to the executions of Chan and Sukumaran. He has said publicly he has no sympathy for the two men but will vigorously pursue Australia's long-standing opposition to the death penalty.

How that is carried out will test Australian diplomacy.

Apart from the risks to a fragile relationship, observers have pointed out that any blunt approach will almost certainly stiffen backs in Jakarta and end any chance of clemency.

Hopes of saving Chan and Sukumaran now rest with Indonesia's inconsistent record in carrying out executions, the fact that in recent times only three of the more than 85 prisoners on death row have been shot, and the lengthy legal road still to be travelled.

It may be years before their case moves through the Denpasar provincial High Court and the two reviews possible through the Supreme Court in Jakarta.

And though President Susilo Bambang Yudhoyono has said he will never grant clemency to drug traffickers, time and quiet diplomacy may change his mind.