Sunday, 15 March 2015

Indonesia cannot bend its laws for others

By Luhut B. Pandjaitan, Published The Straits Times, 14 Mar 2015

THE diplomatic dispute between Australia and Indonesia is not about the core of our relations. It is more about two drug smugglers who were found guilty of attempting to smuggle heroin from Bali to Australia.

They were sentenced to death after due judicial process and in accordance with the laws of Indonesia. Relations between neighbours Indonesia and Australia should not be affected detrimentally by the former's application of its laws.

The Australian government and some segments of popular opinion have contested Indonesia's decision. They want President Joko Widodo to exercise his prerogative to grant them clemency. He has declined.

This stance applies as well to Holland, Brazil and France, which have interceded strongly on behalf of their citizens.

Let me make it clear at this point that Indonesia does not take pleasure in imposing the death penalty, whether for drug smuggling or any other crime.

However, drugs are a scourge of Indonesia. They have taken a grave toll on society. The greed of smugglers in the lucrative illegal drugs trade can condemn entire generations to a twisted and mangled future.

Hence, there is a need for the Indonesian government to signal a firm stance against trafficking. Whether the smugglers try to bring drugs into Indonesia or take them abroad, they are engaged in a deadly trade that must be stopped as much as it can be.

According to the National Drugs Enforcement Agency, 50 people die of narcotics abuse every day in Indonesia. And there are 5.8 million people using drugs a year while the government has only limited drug rehabilitation facilities for 18,000 people yearly.

Indonesia's neighbours Malaysia and Singapore are among those countries which have shared this non-negotiable attitude to drugs for a long time. They do so for the same reason that Indonesia does: to prevent the drug scourge from subverting social fundamentals.

Apart from the need to uphold the deterrent value of the death penalty for drug trafficking, commuting the death sentences on the two Australians is not possible for several reasons.

To start with, there is the overriding principle of state sovereignty. Indonesia's sovereignty, like Australia's, depends on the right and ability of the government to take and implement decisions without interference by other countries.

Sovereignty translates into law. If national laws do not hold, sovereignty does not.

Indonesian law imposes the death penalty for drug trafficking. Australian law does not. But suppose Australia had the penalty and Indonesia did not. Suppose two convicted Indonesian drug smugglers were sentenced to death in Australia. Would Australians have agreed to bend their law to meet Indonesian objections? They would not. Likewise, Indonesia is unable to circumvent its law to accede to Australian requests.

The law, whether in Indonesia or Australia, has to apply to all without exception or favour.

This applies to drug trafficking as well. Indonesian drug traffickers face the death penalty. On what grounds could President Joko possibly give foreigners a lesser sentence than that prescribed for his own citizens?

Exceptions made on grounds of nationality would destroy the principle of equality before the law. Law-abiding Australians recognise this principle instinctively. So do Indonesians.

Nevertheless, Australia suddenly proposed a prisoner swop to secure the lives of the two condemned drug smugglers. There is no legal basis in Indonesia for such an exchange, which would appear to be more appropriate for prisoners of war or spies perhaps.

On that point, and as an aside, Indonesians are infuriated by reports that Australian spies targeted Telkomsel, Indonesia's largest mobile network.

If true, the reports would add grist to the mill of Indonesian perceptions that Australia does not trust Indonesia. However, the reports have not breached bilateral relations between the two governments or peoples.

In that context, it is most unhelpful that warnings have emerged over ominous damage to bilateral relations, should the two drug smugglers be executed.

Threats do not work. Instead, threats force the affected side to stiffen its position.

Indonesians do not like being told of the adverse consequences of their legitimate national actions. It is presumptuous of others to try and do so.

All that will occur when threats are made is that even Indonesians who do not support the death penalty in principle are likely to rally to the government's stand in practice. In an international dispute, warning a government means warning the people.

On this point, much has been made of the fact that Indonesia intercedes on behalf of its citizens facing the death penalty abroad. However, the objection is not to Australia intervening to seek clemency.

The objection is to the manner and tone of the intervention, the warnings and the thinly veiled threats. These are unacceptable. Indonesia does not employ these tactics in its own interventions.

We hope that the angst created by this episode will pass. Australia and Indonesia have much in common in preparing for the economic and strategic challenges of this century. Pacific Asia will be the centrepiece of many global developments that will impinge on the prosperity and security of the two countries.

It would be a grave dereliction of duty if statesmen in both countries let these fundamental realities be obscured by passing irritants in their relations. On Indonesia's part, it values continuing good relations with Australia.

The writer is Indonesian President Joko Widodo's Chief of Staff.

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