The case for capture in Bali

By Doug MacKinnon -- Director of UOW's Centre for Transnational Crime Prevention.

Much has been said and written about the arrest of the so-called Bali 9 at Denpasar Airport and at a Kuta hotel.

There has been criticism of Australian authorities and in particular the Australian Federal Police (AFP) because they provided their Indonesian National Police (INP) counterparts with the information and investigative support that has led to Australian citizens becoming subject to Indonesian criminal laws which include the death penalty for serious narcotics offences.

Most of this criticism is based on Australia's opposition to the death penalty, although some critics seem to think that the AFP has the power to tell the Indonesians how, where and when they may exercise law enforcement powers within their own country. This notion, of course, is wrong and ignores Australia's international obligations under relevant agreements - not to mention some pragmatic issues concerning law enforcement.

First, both Australia and Indonesia are bound to cooperate by the United Nations Convention on Narcotic Drugs and Psychotropic Substances Treaty, 1988 (Vienna Convention). This establishes a framework in which countries can collaborate to minimise drug abuse, production and trafficking through education and a range of law enforcement and crime prevention initiatives.

It obliges countries to enact implementing legislation and encourages them to establish Mutual Legal Assistance agreements. Such agreements are developed to better enable the exchange of information and transfer of evidence between jurisdictions.

Importantly, the Vienna Convention established a fund to assist less advantaged states to develop their anti-drug regimes and urges those states that can to provide assistance to lesser developed states. Australia has had such a relationship with Indonesia at a police to police level for several years.

The effectiveness of such collaborative arrangements was demonstrated by the understanding between the AFP and the INP that enabled the AFP to support the INP to investigate the Bali Bombing in 2002.  

Secondly, Australia, through the AFP and other agencies, promotes capacity-building initiatives for the development of law enforcement and crime prevention to counteract transnational crime in developing Asian and Pacific countries.

Nowhere is this Australian collaboration stronger than with Indonesia. For example, Australia provided the initial funds for the Jakarta Centre for Law Enforcement Cooperation (JCLEC) with a new purpose-built campus at Semarang in Java. JCLEC was opened last year and is overseen by a committee jointly chaired by the Commissioners of the INP and AFP. The Centre now offers high-level technical training to law enforcement personnel from Asia and beyond.

Significantly, Australia also has supported the establishment of an operational Transnational Crime Centre (TNCC) within the INP with the objective of enhancing the operational and intelligence capability of the INP to address narcotics, people trafficking, identity fraud, weapons trafficking and so on. An Indonesian and Australian committee also oversees this program.

The INP has a cadre of highly skilled investigators, many of whom have benefited from training provided by Australia, European and North American countries. This cadre is small relative to the 240,000-strong INP but it is growing constantly.

Back to Bali and recent events.

Four of the nine Australians taken into custody on suspicion of trafficking heroin in Indonesia (not a heroin-producing area but both a consumer and transhipment state) were arrested prior to boarding an aircraft to Australia with heroin strapped to their bodies.

A fifth person, an alleged overseer not carrying narcotics, was taken into custody on board the aircraft. Another four persons were arrested in a hotel in Kuta, and narcotics and relevant paraphernalia were located there. All had been the targets of an INP-led surveillance operation for days prior to their arrest. The Bali police operation on drugs transited through Indonesia destined for Australia was reportedly based on information initially provided by the AFP.

The decision to terminate the surveillance and place all the alleged traffickers into custody was made by a senior INP officer. This was a sound operational decision. The unlikely possibility of an effective   controlled delivery being managed in Australia, and the disadvantages to any law enforcement case of letting the five suspects travel to Australia, far outweighed any advantage of continuing surveillance.

Conduct of the arrests in Bali significantly strengthened the case against those arrested at the Kuta hotel in particular. As all suspect offenders in custody are within the one jurisdiction, the same jurisdiction from which both technical and supporting evidence will be sourced (eg. hotel staff), the court will get a holistic picture of the alleged crimes and will be better informed in its deliberations.

If the proceedings had been split between Australia and Indonesia, the cases against several alleged traffickers would have been weakened significantly.

There are often significant systemic and procedural difficulties in investigating and prosecuting multi-jurisdictional crimes, such as the required meshing of Australia's adversarial common law system with Indonesia's inquisitorial civil law system.

Far more information is available to the public about the circumstances of such a case in Indonesia than ever would be available in Australia. The INP has indicated that in several of the cases they will be proffering charges that carry the death penalty. Subject to conviction it will be the court that decides the penalty and not the police.

Australia's opposition to the death penalty is well known. It differs from our ASEAN neighbours who impose the death penalty for serious narcotic offences. The Australian government seeks to ensure that its citizens are well aware of the serious penalties for narcotics trafficking in South East Asia.

The ASEAN countries notify travellers of such serious penalties through documentation provided to travellers prior to arrival in the relevant jurisdiction. Recent media saturation coverage of another drug case involving Australian citizen Schapelle Corby in Bali has ensured that such penalties are widely known.

Ultimately, the fact that Australia did not shirk its commitments under the relevant agreements may well be viewed favourably by the Indonesian legal system in its determination of sentences.