The news from Jakarta that four more members of the Bali Nine have joined Myuran Sukumaran and Andrew Chan in being sentenced to death raises the horrific spectre of a mass execution of Australian citizens.
Some Australians are still unsure about the appropriate fate for the Bali Nine. Should people who deliberately take risks be required to wear the consequences if the risk eventuates? With a bit of clear thinking we can ascertain the morally correct answer.
There are two important conflicting principles at play in this debate. The first is the notion of personal responsibility. People should take responsibility for their actions. This plays a vital role in controlling human behaviour. If the concept of personal accountability was removed, people would lose the main pragmatic reason for not engaging in conduct that is destructive to the interests of others and themselves.
Responsibility is intricately related to knowledge. Following the media saturation of the Schapelle Corby case in mid 2005, there can be little doubt that the Bali Nine knew of the strict penalties for drug offences in Indonesia.
However, personal responsibility has it limits. We are not expected to wear the full brunt of all the risks that we knowingly take. So, as a community we feel sympathy for journalists who are killed while reporting in war zones and we don’t refuse medical treatment to drunks who walk into the path of cars, obese people who have heart attacks or drug affected drivers who slam into trees.
This is because there is a principle that trumps personal responsibility. It is known as the principle of proportionality. This is the view that benefits and burdens should be distributed with regard to, and commensurate with, a person's merit or blame. This has a very strong role to play in ensuring that we live a just and fair society. If benefits and burdens were randomly distributed we would have little reason to strive hard to succeed or to avoid engaging in harmful conduct.
The proportionality principle is reflected in the notion that the punishment must fit the crime. Excessive punishment, even where the offender knew of the likely penalty, is unfair and cannot be tolerated by a society that has claims to moral enlightenment.
Thus in Australia the sanctions that are dished out to criminals are normally done in measured doses. People who drink and drive are normally put off the road for a year or so, petty thieves get a small fine and armed robbers get locked up for about five years on average.
While the principle of proportionality might be grey at the edges, it is sufficiently precise to inform us that being killed for trafficking drugs is unfair. The most severe forms of punishment should be reserved for the most heinous forms of offending. Drug trafficking is bad, but clearly crimes such as murder are far more serious.
Moreover, the principle of proportionality is not a culturally relevant, provincial rule. It applies across all cultures. All people have the right to be free from the infliction of pain. By its very nature, punishment hurts and if you want to deliberately hurt another person you need a justification. This applies no less in Indonesia than it does in Australia.
Australians caught with drugs overseas are irresponsible but they are no less worthy of our concern and assistance than Australians who through their foolishness run into other forms of trouble.
Moreover, irrespective of people’s views about the level of culpability displayed by the Bali Nine, there is one unique aspect of their case which heavily militates against the imposition of the death penalty. The Bali Nine were only apprehended after a tip off from the Australian Federal Police. Given that Australian authorities instigated the investigative phase of the Bali Nine case, Australia should have a role in deciding the ultimate outcome of case.
Dr Mirko Bagaric acts for five of the Bali Nine.
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