As the situation in Indonesia enters yet another cycle of delay and confusion, the question arises: “Why has this situation arisen in the first place?”and “Are there fundamental differences in the philosophy and structure of the justice systems of the two countries that will inevitably lead to this situation?”
The first and most obvious answer to the first question is that two young Australians (and some 60 other non-Indonesian drug dealers) have broken Indonesian law and have been charged under that law and are about to pay the penalty.
But there are more subtle and complex answers to the second question.
And these answers are found in the fact that legal systems, in this particular case those of Australia and Indonesia, are often quite different in terms of their sophistication and development.
From time immemorial, people have lived in social groups and it has been necessary to develop sets of rules to maintain social order and cohesion in those groups. As these rules evolved, it also becomes necessary to set in place sanctions for those who breach them. Often, these sanctions were harsh and immediate: cutting off the hand of a thief, hanging someone who shot the King’s deer or stoning a woman caught in adultery.
The harshness of these punishments is indicative of one of the important functions of the justice system: retribution and punishment. Retribution demonstrates the social group’s disapproval of the transgression and punishment serves as a deterrent to other potential offenders. both of these tend to be stabilising influences in a society.
Retribution and punishment are present in all systems of justice and represent the first stage in the evolution of a of justice system.
Some legal systems never develop beyond this point. To the Western observer, Sharia law would fall into this category. A justice systems that does not progress beyond this stage of development performs a second important function: the social, political and economic repression of groups within society. These groups are often are deemed to be a threat to that society: ethnic minorities, women, indigenous groups. The list is a long one.
The second stage of development in a iustice system is increasing gradation and refinement of the punishments in the light of the nature of the crime. This is where distinctions are made between various forms of crime such as assault and grievous bodily harm, between dangerous driving and culpable driving. When these distinctions are made it then becomes possible to align the punishments with the perceived severity of the crime.
The next important stage is a development of the concept of restorative justice. In this stage, the justice systems seeks to restore a situation to as close as possible as it was before the crime was committed.
This takes two forms. The first is where the justice system seeks to restore the situation of the victim of the crime. This is often extremely difficult where the victim has received significant injuries, for instance. Nonetheless, it is a recognition of the rights of those who were offended against.
The second form is where the justice system seeks to restore the perpetrator of the crime to the state they were in before they committed the crime. This second form introduces the central idea of the rehabilitation of the criminal into the justice process.
The idea of rehabilitation is based on the notion that human beings are capable of some form of redemption. That it is possible to reform criminals and return them to being normal members of society.
Naturally, this is a lofty ideal and not always achieved or achievable. but it represents the ideal.
The final stage of development of the justice system is where the justice system seeks to understand and mitigate the social, economic, political and systemic structures that create criminal behavior.
Running parallel to the development of the sophistication and humanity of a justice system is the idea of the separation of the powers. In this process, there is increasing separation and independence of the system that administers justice and the system that makes the law
Throughout history and in some societies today, this separation does not exist. Historically, King made the laws and the King sat in judgement on those who broke the law. Nowadays, the idea of the King needs to be broadly interpreted. It can be a single individual, a ruling clique, a dictator or even a political party.
What the separation of the powers means in a practical sense is that the administration of the law is free from political interference. It also means that the justice system can stand in judgement against the legislators. It also means that the interpretation of legislation is left to the judiciary and while it is not a perfect system, it does mean that there is ever protection against the despotism of politicians.
And so to the case of Australia and Indonesia.
The first and most obvious point to make is that the development of the justice systems in these two countries have arrived in vastly different places. The justice system in Indonesia would appear to be far more closely intertwined with the economic and political systems than it is in Australia.
This means that the justice system in Indonesia is more likely to be relatively closely aligned to the current political regime particularly on issues such as the sentencing of foreign drug traffickers. Being a drug trafficker and an Australian means that you enter the Indonesian justice system under extreme prejudice.
The second difference is that the Indonesian system does not appear to make the subtle distinctions that the Australian system makes about the nature and severity of the crimes.
War crimes by Indonesian generals in East Timor go unpunished, while foreign drug smugglers are executed.
Given the emphasis that the media and those arguing for clemency have placed on the work that Andrew Chan and Myuran Sukumaran have been doing on the re-education of drug traffickers, it is clear that the idea of rehabilitation is not a major factor in the Indonesian justice system.
And once you take away the concept rehabilitation, then the idea of capital punishment is so much easier to justify, particularly if your justice system has a strong tendency towards retribution and punishment.
If nothing else comes from this tragic situation, at least the spotlight has been directed at the barbaric practice of judicial murder.
Whether this brings about some change in the Indonesian justice system is yet to be seen.