Australian efforts to save Chan and Sukumaran have been exhausted, but they would not be on death row if it were not for the actions of the federal police. By Jo Lennan.

AFP role in ceding Bali Nine’s Chan and Sukumaran to death row

Myuran Sukumaran (centre) and Andrew Chan (right) speak with their lawyer.
Credit: EPA

Monday brought terrible news for Andrew Chan and Myuran Sukumaran, the two Australians on death row in Bali’s Kerobokan prison. The Indonesian government confirmed that the pair, who masterminded a plan to smuggle eight kilograms of heroin from Bali to Australia, will be put to death in the country’s next round of executions. On Wednesday, the Denpasar district court threw out a final appeal for a review of their sentences.

At any time, with 72 hours’ notice, Chan, 31, and Sukumaran, 33, can be taken from their cells, hooded and shackled, and given the choice of dying standing, sitting or kneeling. They might be strapped to planks or crucifixes before being shot by a firing squad of 12 executioners, three of whom will use live bullets. They could take a while to die, as did two Nigerian heroin smugglers who were killed by a firing squad elsewhere in Indonesia in 2008. A priest who witnessed those executions said it took seven minutes before the moaning men bled out.

This month, Prime Minister Tony Abbott, continuing years of efforts by diplomats and ministers, appealed for clemency for the condemned men. But on Australia Day, Indonesia’s ambassador, Nadjib Riphat Kesoema, told him the pair’s fate was sealed. 

According to former foreign minister Bob Carr, Australia raised the pair’s death sentences at every bilateral meeting he attended. “I don’t think the Australian government could have done more in these circumstances.”

But the question is not simply one of diplomatic effort. Carr has called on the Australian Federal Police to account for its role in the pair’s fate. 

“I think all Australians who are aware of this case believe the AFP has an obligation to explain why they were effectively delivered into a jurisdiction that applies capital punishment, when it appears there was enough evidence to arrest them on Australian soil,” he told The Saturday Paper

The AFP has stood by its actions. On April 7, 2005, Lee Rush learned that his son, Scott, then 19, would travel to Bali the next day. Fearing Scott was going as a drug mule and feeling “sick in the stomach”, he had a lawyer friend contact the AFP. He wanted his son stopped at the airport, or at least warned off. He says he was given assurances, a claim the AFP denies. 

Scott Rush was allowed to board his April 8 flight. The same day, the senior AFP liaison officer in Bali, Paul Hunniford, wrote to the Indonesian National Police (INP) to tip them off about the Bali Nine’s planned importation of heroin into Australia, providing details of the scheme and those involved, including Rush and Chan. 

Along with Lee Rush’s tipoff, the information came from a surveillance operation. Four couriers and Chan had already left for Bali, but another two left the same day as Rush. The letter asked that the INP surveil the syndicate and “should they suspect that Chan and/or the couriers are in possession of drug at the time of their departure that they take what action they deem appropriate.”

On April 12, Hunniford wrote a follow-up letter with new flight details. Contemplating arrests with apparent sanguineness, the letter suggested the strategy of searching the two groups in quick succession to catch them out. 

On the night of April 17, the INP detained Scott Rush, Michael Czugaj, Renae Lawrence and Martin Stephens as they sought to fly out of Denpasar airport with a total of 8.3 kilograms of heroin strapped to their bodies. Thanh Nguyen, Myuran Sukumaran, Si Yi Chen and Matthew Norman were arrested at a Kuta hotel, while Chan, the alleged organiser, was detained without drugs after boarding a plane for Sydney.

“The federal police knew at the time that it was inevitable the nine of them could face the death penalty, and that’s the abhorrent thing about it,” said Lee Rush’s lawyer friend, Robert Myers. “I think they felt that if they gave them nine lives the Indonesians couldn’t resist their pleas for co-operation on terrorism.”

AFP guidelines on providing police-to-police assistance in potential death penalty situations still permit a Bali Nine scenario. In 2006, Justice Paul Finn of the Federal Court ruled in a case brought by Scott Rush that the AFP had acted squarely within the rules but – unusually for a judge – he called for those rules to be reviewed. Subsequent revisions tightened the guidelines but quietly left volunteered tipoffs untouched. 

In announcing the latest revisions in 2009, Labor attorney-general Robert McClelland and minister for home affairs Brendan O’Connor drew attention to the fact that “successive Australian governments have maintained a long-standing policy of opposition to the death penalty and it is appropriate that this position is reflected in our law enforcement practices”.

An AFP spokesman told The Saturday Paper that, under the 2009 guidelines, it is required to consider relevant factors, including the possibility of a death penalty, before providing information to foreign law enforcement agencies, and that the decision must be made by a senior manager. However, the rule does not necessarily preclude the provision of information. Nor does it apply to tipoffs volunteered by the AFP, only to requests for information.

 Why has the problem not been fixed? Because, in the eyes of the AFP and successive governments, it isn’t a problem – Australia gets more from co-operative policing than Indonesia does. The past decade has seen co-operation increase on everything from international child sex tourism to drug trafficking, people smuggling to counterterrorism. 

“The AFP’s co-operation with our Asian neighbours is essential for combating terrorism, serious organised crime and other criminal activity in Australia,” the AFP’s spokesman said. “The AFP cannot limit its co-operation to countries that have similar legal systems to Australia’s.”

The memorandum of understanding between the AFP and the INP, a document whose terms are secret, was signed in the wake of the 2002 Bali bombings by INP general Da’i Bachtiar and AFP commissioner Mick Keelty and renewed in 2011. 

The information flows are huge: as Keelty told the senate legal and constitutional committee in 2006, the AFP transmits about 13,000 pieces of information to overseas law enforcement agencies each year. Aside from Indonesia, Australia has memorandums of understanding with Singapore, Malaysia, Vietnam, Japan, China and the United States – all countries that impose the death penalty.

Carr said the guidelines might be tightened without alienating Australia’s closest neighbour. “It would be quite arguable for Australia to say, ‘We’re opposed in principle to the death penalty, therefore we won’t supply evidence that might be used to convict someone and commit them to Indonesia’s death row.’ ”

But there is a further reason why Indonesia might take Australia’s protestations with a pinch of salt: New York University law professor and senior United Nations adviser Philip Alston calls it “Australian exceptionalism”. Since the government only objects to executions when Australians are involved, “any Asian country is fully justified in considering it to be an almost racist position to be saying, ‘You can go ahead and execute your own citizens for these offences, but if it’s one of ours, it’s different and you shouldn’t do it.” 

Australian leaders from both sides of politics have publicly equivocated on executions, especially when it comes to terrorists. Tony Abbott did so in 2010, telling the Herald Sun, “I mean, you’ve got to ask yourself, what punishment would fit that crime? That’s when you do start to think that maybe the only appropriate punishment is death.” 

Kevin Rudd, as prime minister in 2008, told Perth radio station 6PR that the Bali bombers, who were then on death row and have since been executed, “deserve the justice that will be delivered to them”. 

John Howard spoke in similar terms in 2003, telling Channel Seven’s Weekend Sunrise program that “if [the death penalty] is what the law of Indonesia provides, well, that is how things should proceed. There won’t be any protest from Australia.” Simon Crean, as opposition leader, likewise said he would not “quibble” with Indonesia’s decision to execute Amrozi bin Nurhasyim, the smiling conspirator behind the Bali bombings. 

Poll results show vacillation, but at least a substantial minority – if not a bare majority – of Australians still support the death penalty’s use in certain circumstances. Indonesia knows this. This week ambassador Kesoema said he had received more than 100 letters from Australians pleading clemency, but he had also seen reports of polling that found 52 per cent of Australians supported the executions. 

For now, checks on how our police share information internationally remain deficient. There seems no political appetite to change this. Meanwhile Chan and Sukumaran wait in Kerobokan prison for their now inevitable deaths, victims of a system that has favoured regional co-operation in policing over two human lives.

This article was first published in the print edition of The Saturday Paper on Feb 7, 2015 as "AFP role in Bali Nine deaths".

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Jo Lennan writes for the Monthly and The Economist Group.