Wednesday, April 29, 2015

The death penalty and legal cooperation

Indonesia murdered eight convicted drug smugglers this morning, including Australians Andrew Chan and Myuran Sukumaran. It was a barbarous act, a symptom of a legal system focused on sadism rather than justice. It shows that Indonesia is not the sort of country we should call a friend, or encourage New Zealanders to visit. But it also raises serious questions about the degree of cooperation on law enforcement matters we can have with them.

We already have limits. New Zealand law allows the government to refuse extradition in death penalty cases. While that seems weak, the subsequent affirmation of the right not to be deprived of life by the New Zealand Bill of Rights Act - a right to which there can be no "justified limitation" - strengthens it significantly, effectively turning the "amy" into a "must" (though it would still be good to have that set in statute, just to remove any wiggle-room for the government). But extradition isn't the only form of legal cooperation. In 2011 the NZ Police signed an "Arrangement on Cooperation in Preventing and Combating Transnational Crimes" with Indonesia. While the text isn't publicly available, it likely includes information sharing on crimes such as international drug smuggling. NZ Customs likely have similar arrangements. The problem is that given Indonesia's demonstrated use of the death penalty, sharing information with them on death penalty offences or people accused of such crimes is almost certainly illegal.

Why? Because the BORA applies to all actions "by the legislative, executive, or judicial branches of the Government of New Zealand", regardless of where they take place. And the right to life isn't restricted to New Zealanders, but applies to all persons. The net result: providing information or assistance to overseas agencies which would reasonably result in them being arrested, convicted, and executed violates their right to life and therefore violates New Zealand law. In Indonesia's case, that means that we simply cannot talk to them about drug smuggling, or any other crime for which they have the death penalty, anymore.