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picture of Professor Mirko Bagaric

Professor Mirko Bagaric

Mirko Bagaric is the Dean and Professor of Law at Deakin University. His main work is in the area of punishment and sentencing. He has also written extensively in migration and refugee law and human rights law. His articles have been cited in over 50 court judgments, including the High Court of Australia and superior courts in Canada, Singapore, New Zealand and Ireland.

Originally published in The Australian.

The human condition is not designed to deal with the torment that Andrew Chan and Myuran Sukumaran would have experienced in the days and hours leading up to their execution. It is impossible to contemplate the nature and extent of their terror.

The misery that has been inflicted on their families is perpetually inconsolable, foisted on them by the abject cruelty of deliberately killing healthy human beings who have an unremitting desire to continue to exist.

Most Australians are furious at Indonesian President Joko Widodo for authorising the killing. They have every right to be. His act of not granting clemency was one of brutal cowardice, not strength. In the eyes of the majority of the international community his legitimacy and authority on social and moral issues will forever be tarnished.

Life presents few opportunities for incalculable misery to be spared by the stroke of a pen. The decision by Widodo to spare the life of Mary Jane Veloso but not those of the two Australians (and the other six prisoners who were executed) will permanently stain his leadership and forever be a black spot on his character.

Unfortunately, executions will continue to occur in the foreseeable future in Indonesia and ­several other Asian countries ­(especially China).

The developed world lacks the moral persuasion to effectively urge all countries to abolish capital punishment because the most influential nation on earth continues to condone the practice. Capital punishment is legal in more than 30 American states.

Barack Obama supports it for extreme crimes such as mass killings and the murder of children.

There are nuanced legal and philosophical arguments in ­support of the death penalty for only the most heinous of crimes. While empirical evidence shows (nearly conclusively) that it does not deter crime it can be argued that it is a proportionate response to depraved criminal acts.

But there are some arguments that are better left in the classroom and which should never be used as supposed political and social justifications for extreme practices, such as capital punishment.

The ongoing support of the death penalty by the US for heinous crimes provides an opening for other countries to attempt to justify executing offenders for less serious crimes.

The regrettable reality is that countries like Indonesia and China will continue with their appalling execution practices until the developed world can speak with a single united and absolutist voice regarding the barbarity of the death penalty. In order for this to occur, the focus of the debate now needs to shift to Washington.