Ending Execution: An Interview with Reprieve Australia’s Julian McMahon

In the early hours of the morning on April 29 2015, Myuran Sukumaran and Andrew Chan were executed by firing squad by Indonesian authorities. The two men were part of the Bali Nine: a group of Australians convicted of drug trafficking.

Although there had been a virtual moratorium on the use of the death penalty in recent years, the newly elected Indonesian president Joko Widodo refused clemency for the men, as he had a policy of taking a hard line stance against drug offenders.

The two young men were sentenced to death for their part in the scheme to smuggle more than 8 kilograms of heroin out of the country in April 2005. This was after Indonesian authorities had been tipped off about the plot by the Australian federal police (AFP).

The executions that morning – which involved a total of eight people going before the firing squad – came under international condemnation. The Australian government responded by immediately withdrawing its ambassador from Indonesia.

Australians on death row

In 2015, the Department of Foreign Affairs and Trade outlined that there were 17 Australians on death row overseas.

Currently, Peter Gardner is being detained in Guangzhou China for allegedly trying to smuggle 30 kilograms of methamphetamine out of the country. He’s awaiting the verdict of his trial to find out whether he’ll be sentenced to death.

Maria Elvira Pinto Exposto is a woman in her fifties, who’s facing death by lethal injection in Malaysia. In December 2014, she was stopped by authorities at Kuala Lumpur airport with ice in her baggage. The Sydney grandmother was in transit on her way home from Shanghai.

State-sanctioned killing

In April this year, Amnesty International released its 2016 report on the use of the death penalty around the world. The human rights group found at least 1,032 people were executed in 23 countries last year.

China remains the world’s greatest executioner. But, the figures in that country are a state secret, so the actual number of people who were put to death by government’s last year is believed to be thousands more.

The United States executed 20 people in 2016, which meant the country was no longer one of the world’s top five executioners. This was the first time they’d been off the list since 2006.

However, these figures don’t take into account the thousands of people that were killed in the Philippines war on drugs, which was launched by president Rodrigo Duterte, when he came to power on June 30 last year. The death toll now stands at around 7,000 lives.

Putting an end to it

Reprieve Australia is an organisation calling for the abolition of the death penalty worldwide. President of the campaign Julian McMahon is a Melbourne-based barrister, who was part of the defence team for Chan and Sukumaran.

Sydney Criminal Lawyers® spoke with Mr McMahon about the mechanisms available for Australians on death row, the arguments against the use of the penalty, and why there is very real hope that this practice may come to an end.

Firstly, Julian, once an Australian citizen finds themselves in a situation overseas, where they’ve been arrested and could potentially face the death penalty, what sort of support systems are out there for them? And what assistance does the Australian government provide?

The starting point when you’re arrested in Australia is to ask for a lawyer. In a foreign jurisdiction, the two starting points are to seek a lawyer, and to speak to your consular officer.

Under article 36 of the Vienna Convention for Consular Relations, you have a right to access your consular officer without delay. Ideally, any person arrested would take advantage of both those approaches to work out their options.

Secondly, the support systems will vary enormously depending on the likely outcome of the case, the country the individual is in, and their financial resources.

My experience with the Australian government is through their consular services they provide as much support as they can if a person is likely to face the death penalty.

I don’t have much experience with cases that don’t involve the death penalty, but no doubt there’s much less opportunity to provide support given the large numbers of people arrested.

For death penalty cases, people can of course contact us at Reprieve Australia. For all cases, people can contact Australians Detained Abroad.

How difficult would you say it is for a legal team to work on a case where there’s the chance it could result in the execution of a client?

Again, it varies enormously from country to country. We can do very little for a person in some totalitarian countries, such as China. But with a person in relatively open democratic or less authoritarian countries we can do a lot more. There we can assist the local lawyers in all kinds of ways.

As of May this year, the Australian Federal Police (AFP) has assisted in 120 foreign investigations since 2015, where a successful prosecution could have led to a death sentence.

The AFP have been widely criticised for tipping off Indonesian authorities about the Bali Nine, which resulted in the executions of Sukumaran and Chan in 2015.

How can authorities in a country where the death penalty has been outlawed justify assisting in foreign cases that can led to the execution of people?

There are many complexities to this question. And opinions differ. When the AFP engages with another police force overseas in a relatively serious matter, the only person in the other country who can give an assurance that there will not be any execution as a result of that assistance is the head of state, whether that’s the president or the prime minister, or perhaps a delegate such as the attorney general.

The reality is that the police force has to operate, and yet an appropriate assurance can only come at the ministerial/leadership level. However, the police work that needs to be done might be extremely urgent.

For instance, imagine a scenario several hours prior to a terrorist explosion, where information is needed urgently. In many countries the penalty for a terrorist offence may be the death penalty. But police cooperation might urgently be needed to prevent a massive terrorist act.

It would be impossible to arrange the appropriate assurances on the question of whether any of those involved would in the years to come face the death penalty for the crime that they’re apparently engaged in.

There are a couple of documents I would recommend looking at. There’s the March 2017 Joint Standing Committee on Foreign Affairs, Defence and Trade report, and Philip Ruddock’s May 2016 report on the World Without the Death Penalty. There is also a report written by Sarah Gill, an academic researcher, in Fairfax in May this year.

The practical approach I’m currently satisfied with is to look at the facts on the ground. And to look at the effect of how the AFP manages to balance these issues.

The practical effect is that since the erroneous decisions – erroneous in my opinion – which were made in early 2005 leading to the arrest of the Bali Nine, namely sending of the letters from the AFP to the Indonesian police there have been no other Australians executed overseas, apart from Sukumaran and Chan.

Despite all the complexities, the approach taken by the AFP seems to be working.

In my opinion, whenever the Australian Federal Police assist another police force, our correspondence should boldly state Australia’s commitment to human rights principles as set out, for example in the United Nations International Covenant on Civil and Political Rights, and explicitly state that Australia is opposed to all executions.

Hambali is the alleged mastermind behind the 2002 Bali bombings. He’s had terror-related charges filed against him in the United States. Last month, it was announced that prosecutors aren’t seeking the death penalty for him.

For anti-death penalty campaigners this was good news, but some in the Australian community might not agree.

What is the argument as to why the death penalty should never be used, even in cases where a person has allegedly caused a great loss of life?

Pared back the question is, why do we oppose the death penalty? I don’t think that there is one simple sentence that answers that question. It’s really a collection of ideas, which have different weight in different places and cultures.

The first is, whenever you execute, innocent people may be executed. Anybody who thinks there is such a thing as a flawless justice system is simply speaking from ignorance. So there is always that risk.

Secondly, it means that rehabilitated prisoners can be executed. Thirdly, and perhaps most importantly, whenever a person or a state kills another person, they’re undermining the fundamental principle that each life has dignity and value. And from that simple principle, many other rights flow into the community.

Once you undermine that principle, you lower the inhibition against killing. To some extent you sanction brutality within a society, and normalise premeditated killing. All those things are harmful for a community.

And we can see how they are harmful, by simply studying the countries which frequently carry out the death penalty.  In many countries which execute, there are many other related problems. These related problems in my opinion are often linked to the attitude that killing prisoners can be OK. For example, in many countries, obviously not all such countries, which execute, we see other grave injustices, ranging from mistreatment of prisoners, torture, corruption, unfair trials and so on. And wherever you look, it’s almost always the poor and virtually never the rich who get executed.

Your question is simple. The answer is not so simple. But, the more you look at it, the more arguments there are for opposing premeditated state-sanctioned killing.

Within your question you asked, if the accused person has caused a great loss of life, can that make it justified? But once you start applying a sliding scale like that – rather than an overarching principle – you end up in an endless quagmire.

“The death penalty deters crime:” this is the argument made by countries to justify their use of this punishment.

Is there any evidence that the use of execution stops people breaking the law?

The answer is no. And there’s a great deal of research to support that.

For instance, one study looked at homicide rates in different American states between 1974 and 1999. During that period, Texas executed 447 people, while California executed 13 and New York executed no one. But, the homicide rates in each state were pretty much the same throughout the whole period.

There are similar studies looking at a 35 year comparison between Hong Kong (which does not execute) and Singapore (which executes) and between Canada (which does not execute) and the USA. In these comparative country studies trend rates remained similar or identical. There are many studies on these issues.

Reprieve Australia is an organisation calling for the abolition of the death penalty worldwide. It involves volunteers, interns and a board that work to develop legal and policy solutions that will help save lives.

What sort of initiatives and campaigns is Reprieve currently working on?

We’re now focusing on Asia more than ever before. And we’re aiming to be more involved at a policy and lobbying level internationally. So for instance, in the last few months we’ve joined the board of ADPAN the Anti-Death Penalty Asian Network, and we joined the steering committee of the World Coalition Against the Death Penalty.

I’ve given speeches over the last 12 months in quite a lot of countries, including Vietnam, Malaysia, the Philippines, Hong Kong and Norway.  And we’re engaging with some countries to try and find them interns.

Over the next few years, we’ll be working with universities to do targeted research to answer specific regional issues. Because in my experience from watching what others have done, the more research you do and the more data you gather the stronger your arguments become.

And lastly, do you think things are changing globally in regards to the death penalty?

The fascinating thing about the death penalty debate is that it’s been a successful human rights issue.

At the end of the Second World War, almost all countries in the world either carried out or sanctioned executions. But over the next 70 years, that completely changed. In recent years, only about 25 countries have actually executed. And at least 140 countries have stopped executing.

The debate is currently on a knife edge due to the political situation in countries like the Philippines, Turkey and Indonesia.

But overall it’s a success story, in terms of what change can be brought about.

Julian thanks very much for taking the time out to speak with us today.

Thank you.