The Bali two: deserving of a fair trial and punishment

Condemned, lost and scared. That’s the predicament that the two members of the “Bali Nine” Myuran Sukumaran and Andrew Chan find themselves in after being sentenced to death by an Indonesian court.

As the first Australian-based lawyers scheduled to meet Myuran and Andrew, we were curious as to what we would find behind the walls of LP Kerobokan prison. Shrewd, cunning and merciless is how they have been portrayed.

They are anything but that. They are polite, softly spoken, resourceful and seemingly considerate young men, who have never previously run foul of the criminal law.

They both grew up in the poorer suburbs of Sydney and toiled through secondary school, wanting to lead a better life than their first generation migrant parents.

Like most Aussie men living in this increasingly materialistic world, they have a strong desire to attain the latest status items in the form of cool clothes and fast cars. Caught up in what American sociologist Robert Merton terms “anomie” as a source of delinquency - a discrepancy between means and ends - they pursued illicit means to obtain legitimate ends and are now paying an horrific price.

Unlike some Australians, Myuran and Andrew were never going get far up the materialism food chain, at least not in a hurry. Their parents couldn’t afford to send them to good schools, they had no old school connections to tug on and with only secondary schooling behind them they were never going to crack it for a high flying, good paying job.

Despite this, through hard work and perseverance Andrew managed to work his way up to being a section manager at a sports stadium, while Myuran landed several clerical jobs.

Unfortunately they got short-sighted and tried to make a few bucks in a hurry and materialism-induced tunnel vision inhibited their capacity to properly assess the long-term impact of their conduct. However, as Andrew put it, “We are not Ivan Milat, we would never do anything that we thought would hurt anyone”.

This is a point that has been missed by some people. All legal and ethical systems have a hierarchy of culpability. Intentional harm is at the top, indifference or carelessness is near the bottom. That’s why we punish murderers more than employers who cause the death of workers as a result of unsafe work practices.

For their stuff up, Andrew and Myruan deserve to be punished. They accept that. They’ve never tried to blame others. And their attitude - despite their cultural dislocation and the privations of being foreigners in a Bali jail - is not one of self pity and attempts to make excuses.

They only want two things. The first is a fair trial to ascertain their correct level of wrongdoing. Instead bureaucratic considerations meant that Andrew and Myuran had only three and a half days to respond to the three-month prosecution case that was mounted against them.

Second, their punishment must be commensurate with their level of wrongdoing. To this they are also entitled.

One of the most fundamental principles of justice is that punishment must fit the crime. This principle, known as proportionality, is not a culturally relevant, provincial rule. It applies to all governments across all cultures. This applies no less in Indonesia than it does in Australia.

Excessive (or for that matter lenient) punishment is unfair and cannot be tolerated by a society that has claims to moral enlightenment. The mere fact that a person has committed a crime does not mean that anything goes as far as punishment is concerned. So, people who drink-drive are normally put off the road for a year or so, drug-takers receive a small fine and we rarely send petty thieves to jail.

Capital punishment is especially repugnant. The cold blooded execution of healthy people who have an unyielding desire to live is brutality in its most obscene form. It has no redeeming features.

It does not reduce crime. This is incontestable. The data is conclusive. When countries abolish the death sentence, the crime rate does not increase. When it is introduced, the crime rate does not fall.

There is a not a single benefit to be derived from executing Myuran and Andrew.

The reflexive approach taken by some Australians that Myuran and Andrew knew the risks and hence must pay the price for their criminal activities - even if it means that their lives are extinguished as they have barely reached adulthood - is fundamentally flawed.

As a society, we are committed to the principle that we are not required to wear the full cost of risks that we assume. We don’t refuse medical treatment to drunks who walk into the path of cars, obese people are not denied heart by-passes and ambulances don’t travel slower when calls for help are received by drug-users.

We suspect that the reason that many people cling onto this simplistic mindset is because it allows them to avoid the horror of capital punishment and to place all of the burden back on the offender. This opt-out clause doesn’t work. There is too much at stake to allow indifference to set in - indeed the stakes couldn’t be higher.

This is certainly the case for Myuran and Andrew. It is also important for the rest of the community. We would all be considerably diminished if we condoned the cold blooded pointless killing of other Australians. Their culpability is appropriately punished by a long prison term.

Myuran and Andrew displayed an appalling lack of judgment by getting involved in drugs. A mind set that condones the decision to execute them would be even more flawed.