EARLIER THIS month the Indonesian Supreme Court increased the sentence of four of the ‘Bali Nine’ to the death penalty, while confirming the same punishment for a further two. With well-publicised criticism over the way in which the Australian Federal Police (AFP) assisted the Indonesian authorities in the incident, it would be easy to ascribe blame for the fate currently awaiting the condemned Australians. But Dr Mirko Bagaric, lawyer for five of the six on death row, considers a more positive approach to be critical.

“We don’t think it’s productive, or appropriate, to have a running critique of the Indonesian legal system as we’re going along,” he said.

“Although their system is different, it doesn’t mean then that it is necessarily less sound than ours. So we’re working within that, in a co-operative way, and also, at the same time, trying to work with the Government in our country in order to get the best outcome for our clients.”

There are also important similarities in the Australian and Indonesian approach to serious drug offences.

“Indonesia doesn’t have mandatory death penalties for any sorts of drug offences, and in fact the most common type of sentence for drug offences in Indonesia is a long prison term, [which] is exactly the same sort of sentence that normally is imposed in Australia,” Bagaric said.

Because of this commonality, “there is a considerable scope for securing an outcome which respects, and is consistent with, the culture and the sentencing norms in both countries, in this particular case,” he said.

Along with Peter Johnson OAM and Richard Edney, Bagaric is representing Andrew Chan, Myuran Sukumaran, Matthew Norman, Si Yi Chen and Tach Duc Thanh Nguyen. Chan and Sukumaran had their original death penalty verdicts confirmed by the Supreme Court, whereas Norman, Chen and Nguyen were given increased sentences from 20 years to death by firing squad.

Being represented by other lawyers, Scott Rush, who also now faces the death penalty, Martin Stephens (life), Michael Czugaj (20 years) and Renae Lawrence (20 years) make up the remainder of the Nine.

According to Bagaric, there are still two avenues for further appeal for his clients: by judicial review of the Supreme Court, or lateral appeal to the Constitutional Court.

Law Council of Australia president Tim Bugg was more scathing of the system that allowed the AFP to assist Indonesian enforcement agencies with crimes committed by Australian citizens that potentially attracted capital punishment.

“[AFP] co-operation currently flows unhindered up to the time of charge,” he said. Unlike what would have occurred had the Bali Nine been charged in Australia, “charges were not laid until months after their arrest. No doubt expert AFP assistance continued to be provided to Indonesia during those months even though it was obvious that death penalty charges would eventually be laid,” Bugg said.

“The need to seek the Attorney-General’s authorisation to proceed with co-operation after charge should, for civil law countries, be triggered by arrest. This would introduce the appropriate level of political responsibility for what follows.”

Despite believing “it is disingenuous in [the] circumstances to protest about the result”, Bugg welcomed the latest widespread political criticism of the Indonesian Supreme Court decision.

“The Law Council is heartened at the swift condemnation of the sentences from both sides of politics… it is vital that moves to spare our citizens the horror of facing a firing squad have strong, unified, bi-partisan support,” Bugg said. “Although we acknowledge Indonesia’s undeniable right to arrange its own justice administration, the Law Council supports plans to lobby the Indonesian Government for clemency.”

In that regard it seemed Prime Minister John Howard agreed, though he downplayed the chances of success.

“I don’t think people should entertain too many optimistic thoughts because it’s difficult, but we will try hard and we will put the case against the death penalty,” Howard said.

Bagaric said he and his colleagues have “always known that the Prime Minister doesn’t have a compassion deficit”. They are “most grateful that the Australian Government has indicated, unequivocally, that if all appeal avenues do fail, then it will make strong representations seeking clemency for our clients”.

Herein lies the basis for Bagaric’s reluctance to criticise the political machinery that helped put his clients in the line of fire.

“We’re working with the factual situation that we’re currently presented with, and we’re applying all our energies in that direction, as opposed to making comments in terms of what is now a matter of history,” he said.

Some of those energies are directed toward educating other governments, and their citizens, about the use of capital punishment, which Bagaric described as failed and futile, an assertion conclusively backed up by “overwhelming empirical data”.

“A recent 20-year study in the US showed that the states with the death penalty have in fact a higher rate — somewhere between 48 to 101 per cent — of serious crime than the states that don’t have the death penalty,” he said.

“If these research findings are made more widely known to people [overseas], and also to governments, we’re confident that is in fact the best way to encourage these countries to abolish the death penalty. That’s certainly what we have been attempting to do… [through] comments that we’ve made publicly in Indonesia, but also in terms of some articles that we’ve published … in Indonesian newspapers,” Bagaric said.

What is more urgent for those on death row, however, is for the Government to assert its right to be involved in a case Bagaric believes is entirely unique, given “the way in which our clients were arrested, charged and got to their current predicament was as the result of a co-operative endeavour between [the AFP] and Indonesian authorities.

“Given that there has been that co-operative endeavour, Australia does have some standing and legitimate say in terms of the way this ultimately pans out and is finalised,” he said.

Not only is Australian political involvement justified in Bagaric’s opinion, it is essential in order to ensure healthy future diplomatic relations between Australia and Indonesia.

“If there is a significant proportion of the Australian community that is disturbed by the predicament that our clients currently find themselves in, the natural outcome in a democratic country like Australia is that it would reduce the likelihood of this type of co-operation in the future,” he said.

“That’s not good for Australian citizens; it’s not good for Indonesians either.”