People who try to bring illegal drugs into any country are clearly taking a high risk in order to obtain the returns they seek. In some countries, including a number in Southeast Asia, the stakes are very high indeed, as those caught with drugs may face the death penalty or a considerable number of years in prison. Most people are aware of this (there have even been movies about it), but just last week I read a story about yet another Australian citizen facing drug charges in Indonesia after being caught at a Bali airport with nearly four pounds of crystal methamphetamine.
Indonesia’s tough drug laws have received a great deal of attention in Australia in recent years. The case of Schapelle Corby, who was sentenced to spend twenty years in a Balinese prison after being convicted in May 2005 of trying to carry about nine pounds of marijuana into the country, remains the subject of a number of newspaper and magazine articles. Having exhausted her appeals, Corby’s clemency application is now being considered by the President. The most recent Australian arrestee has apparently hired the same lawyer that represented Corby and, like Corby, is claiming that he didn’t know that the drugs were in the bag that he was carrying.
Sharing that same prison are members of the “Bali Nine” – a group of Australians originally sentenced in 2006 for heroin trafficking offenses. Three of the men (now aged 24, 26 and 29) are currently facing the death penalty should their final appeals fail (the sentences of some of the nine were changed as a result of previous appeals). The Supreme Court is expected to make decisions on the appeals by the end of the year. Hearings in one case have just wrapped up this week, and the court will hear further submissions from the other two men next month. Prosecutors in the first case are pushing strongly for the court to uphold the death penalty sentence, while the defense counsel argue (with the help of testimony from the Australian Federal Police) that the man was only a courier and not a major player in the broader trafficking enterprise. The Australian government has said that it will become further involved from a diplomatic standpoint in the event that the appeals fail and the men apply for clemency from the Indonesian President. Apparently, however, the current President has not granted clemency for any drug cases in the last six years.
The Bali Nine and Schapelle Corby were convicted under Indonesia’s Law No. 22 of 1997 on Narcotics.No. 22 of 1997 on Narcotics. This law sets out different classes of drugs – Category I includes heroin, methamphetamine, cocaine, and marijuana. Article 82 states that the sentence options for illegally importing, exporting, distributing, buying, or selling these types of drugs is twenty years to life in prison, or the death penalty (which would be carried out by firing squad – the only method of carrying out the death penalty in Indonesia). A revised drug law was passed in 2009, which maintains the death penalty for these types of offenses. As a result of a judicial review action brought by the three Australian men and two others on death row for drug offenses, the Indonesian Constitutional Court held in 2007 that the death penalty provisions in Indonesia’s drug laws are constitutional.
The last time the death penalty was carried out in Indonesia for drug trafficking was in 2008, when two Nigerian nationals were executed on the International Day against Drug Abuse and Illicit Trafficking. They were the first drug offenders executed there in four years. As of mid-2009, there were reportedly 56 people on death row for drug offenses in Indonesia, many of them foreigners. According to a report released earlier this year, 32 jurisdictions around the world maintain laws that prescribe the death penalty for drug offenses, and hundreds of people are executed each year under these laws. It is interesting to note the there are a number of Indonesian nationals potentially facing the death penalty for drug offenses in Malaysia, with the Indonesian government facing public pressure to take diplomatic action to assist them.
The cases have given rise to various questions in both Indonesia and Australia: Is the death penalty a proportionate sentence and effective deterrent for drug traffickers? To what extent should the Australian government comment on or get involved in these cases, particularly where individuals receive (or may receive) the death penalty? (Australia is strongly opposed to the death penalty, having ratified the relevant international conventions on the subject and recently passing a law that will prevent the sentence ever being reintroduced in any Australian state or territory.) What should the process be when Indonesian authorities request information from Australian authorities regarding transnational criminal offending? The Bali Nine case actually led to some changes to the procedural guidelines, with the Australian Federal Police – who had provided information to Indonesian authorities that led to the arrests – now required to consider a range of factors in determining responses to requests for assistance from other countries when there is the possibility of the death penalty being imposed.
The laws and various cases are interesting for a number of reasons, including the comparative law perspective, international law and diplomatic relationship factors, and the ideological, human rights, and criminology debates regarding the death penalty, as well as the personal factors involved in the offending and its consequences for the individuals concerned. There are a multitude of views and positions that people and countries take based on any or all of these factors. Condemnation from international organizations, public pressure, and diplomatic efforts may have an impact on these positions, both in individual cases and in the long term, but ultimately the laws and legal system of the relevant country will prevail.