Mirko Bagaric: Moral enlightenment rejects oppressive law

Should people who deliberately take risks be required to wear the consequences if the risk eventuates? Yes and no. That's the reason Australia is polarised about whether the two Bali Nine ringleaders, Myuran Sukumaran and Andrew Chan, deserve to be executed by Indonesian authorities.

Opinion polls at the time of the execution of Van Nguyen in Singapore in December showed that Australians were split 50/50 about whether he deserved to be hanged. The Bali Nine debate is likely to be similarly divisive. Yet, with a bit of clear thinking, we can ascertain the morally correct answer.

There are two important conflicting principles at play in this debate.

The first is the notion that people should take responsibility for their actions. This plays a vital role in controlling human behaviour. If the concept of personal accountability were removed, people would lose the main pragmatic reason for not engaging in conduct that is destructive to the interests of others and themselves.

Responsibility is intricately related to knowledge.

Following the media saturation of the Schapelle Corby case last year, there can be little doubt that the Bali Nine knew of the strict penalties for drug trafficking. Hence, our reflexive response to the death penalties handed to the ringleaders is that they must accept the punishment.

However, personal responsibility has it limits. We are not expected to wear the full brunt of all the risks that we knowingly take. So as a community we feel sympathy for journalists who are killed while reporting in war zones and we don't refuse medical treatment to drunks who walk into the path of cars, or drug-affected drivers who slam into trees.

This is because there is a principle that trumps personal responsibility: the principle of proportionality. This is the view that benefits and burdens should be distributed with regard to, and commensurate with, a person's merit or blame.

This has a very strong role to play in ensuring that we live in a just and fair society. If benefits and burdens were randomly distributed we would have little reason to strive hard to succeed or to avoid engaging in harmful conduct.

The proportionality principle is reflected in the notion that the punishment must fit the crime. Excessive punishment, even where the offender knew of the penalty, is unfair and cannot be tolerated by a society that has claims to moral enlightenment.

Thus in Australia the sanctions that are dished out to criminals are normally done so in measured doses. People who drink-drive are usually put off the road for a year or so, armed robbers get locked up for five years.

While the principle of proportionality might be grey at the edges, it is sufficiently precise to inform us that being killed for trafficking drugs is unfair.

The most severe forms of punishment should be reserved for the most heinous forms of offending. Drug trafficking is bad, but clearly crimes such as murder are farftsla more serious.

The principle of proportionality is not a culturally relevant, provincial rule. It applies across all cultures. All people have the right to be free from the infliction of pain. By its very nature, punishment hurts and if you want to deliberately hurt another person you need a justification. This applies no less in Indonesia than it does in Australia.

So the Indonesian government can't trumpet the tired old "when in Rome do as the Romans" line to justify the ringleaders' penalties.

All people are entitled to have their fundamental interests at least minimally protected. That's why we see a slow but sure convergence in basal moral principles across the globe - slavery and discrimination are almost universally deplored even in Rome and by Romans.

The related notion of national sovereignty has, fortunately, been beaten down by the twin forces of globalisation and the human rights movement so that it can longer be invoked as an impregnable shield to justify draconian laws - a lesson that that the likes of Slobodan Milosevic have learned the hard way.

Wideranging empirical studies show that draconian penalties don't have wider benefits. The greatest deterrent to wrongdoing is not the size of the penalty but the perceived risk of detection. Bigger penalties do not lead to more obedience - countries with capital punishment don't have lower levels of crime.

Australians caught with drugs overseas are irresponsible but are no less worthy of our concern and assistance than Australians who, through their foolishness, run into other forms of trouble.

This means that the Federal Government needs to press the Indonesians about their oppressive drugs laws and agitate for a reprieve for Chan and Sukumaran. In doing so it must emphasise that Australian authorities instigated the investigative phase of the Bali Nine case and should therefore have a role in deciding the ultimate outcome.

* Professor Mirko Bagaric, head of Deakin Law School.