Law and Justice


FieldOfBloodThe execution by Indonesia of Andrew Chan and Myuran Sukumaran has caused a level of outage on the part of many Australians, myself included.

Part of this outrage is because we have an expectation that law and justice are inexorably allied concepts.

Law is a system of rules that determine acceptable limits to conduct of individuals in a society. Law is generally understood as the codified legislation as determined by the relevant authorities (such as the elected parliament in a democracy), together with the body of principles as determined in the court system of a jurisdiction, and might be referred to as common law.

Justice is that which implies equity in the out working of the administration of the Law. Loosely, as Australians, we tend to call this a fair go for everyone.

Western civilisation as inherited a tradition of this reflection, and we have some assumptions about matters that constitute Justice.

This indeed does grow and develop over time. Once women did not vote in a democracy, today to deprive part of our community on the basis of gender from basic participation is totally unjust.

Are there over-riding principles?

During the second world war Nazi Germany caused or allowed the slaughter of millions of people based on their religious connections – The Jews of the Holocaust – and clearly denied justice. Nobody believes that Hitler, or the Nazi Administration had the right to make such laws or regulations.

The Old Testament legal principle – an eye for an eye – (Exodus 21:24) if often cited as support for harsher justice, however in many senses the point of the maxim was to limit what might be extracted in recompense for those who had transgressed the code. The principle that punishment be a measured response, and limit over-reaching response, has seemed appropriate at least in the west.

The United Nations has called for a global moratorium on the Death Penalty and holds it should be reserved for the most heinous of crimes, such as Murder, and Terrorism. This seems to follow in the same tradition of a measured response.

As an execution is an irrevocable act it is clear that there an absolute certainty about the verdict and the process is essential.

Another matter of concern in the administration of Justice is that there is a clear separation between the Administration and the conduct of the legal process. That is to say that judges and magistrates are quite separate from the Administration in the conduct of their duties. In other words they should rely on the information before them in court, and no be influenced in their decision-making process by those who hold high office, the media or indeed public opinion.

In a number of jurisdictions now adopting Sharia (Islamic) Law there is a different tradition of justice, where people have hands amputated for theft, and the death penalty is for many offences including homosexuality or for dishonouring the prophet Mohamed. In general terms most observers from the west would regard this application of law does involve an excess of retribution and as such is a denial of the principles of justice.

The Indonesian Case

There are a number of areas of concern in terms of the Indonesian process in relation to the execution of Andrew Chan and Myuran Sukumaran. The death penalty may well be a question of a punishment in advance of a measured response. Drug trafficking is a blight on our society and certainly results in people losing their lives as a result of it. None the less, whilst reckless and wretched, it does not seem to bear the same level of culpability as pre-meditated murder.

There is a significant suggestion that the imposition of the death penalty in this case was (at least in part) was in response to pressure from the administration. If there is any truth to these allegations then it throws further doubt as to the viability of the verdict and sentence passed.

Joko Widodo is a new President, and after five years of not executing prisoners he has made it his mission to bring back the process, for the benefit of his seeming political advantage. Of course it does seem rather hard to accept that people’s lives be expended in order that a person may further their political career, but there we have it.

There is ample evidence to suggest that Andrew Chan and Myuran Sukumaran had made massive strides in terms of a process of rehabilitation, and in some real sense their execution seems a senseless waste of human life.

There has been a significant amount of media exposure through the last few months seemingly orchestrated by the Indonesian Administration for the benefit of the political process. Much of this has seemed close to obscene, and at the very least appallingly insensitive.

Can we tell Indonesia what its laws should be?

At one level Indonesia is a sovereign nation and has the right to make its own laws and administer its own justice. However no nation has a mandate to deny justice or act in a way that may be considered barbarous. Each nation has the responsibility to maintain and review systems to ensure that their legal system is producing just outcomes.

Indonesia is not on its own here, of course, the four most populous nations on the planet all use the death penalty. Even in the US where one might expect that there is great hope for getting it right, it seems numerous people have been wrongly convicted and executed. Of course once you execute someone, it is very hard to make it up to them.

Does rehabilitation mean anything?

One would have to wonder how a convicted felon in Indonesia would feel today about the process of their own rehabilitation. It seems in some sense Indonesia has squandered the opportunity to encourage people to do better. Andrew Chan and Myuran Sukumaran appear to have been textbook cases affirming the possibility of reform, remorse and a change in direction and purpose. Indonesia seems determined to turn back to the old ways.

The death penalty is a symptom of a culture of violence, not a solution to it.

No-one is advocating drug trafficking. There is no suggestion or evidence that the executions have any meaningful impact on that trade. If we want to argue that people should stop killing people, it seems hard to argue that the state engaging in the activity it is trying to stop makes any sense.

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