Bali 9: The Untold Story (26 page)

A
phone rang in Brisbane in the dead of night. Then another. Then more: in Sydney and further down the coast and all the way to the corridors of power in Canberra. No one among the families of the Bali Nine knew what was going on. It was like a bad dream that couldn’t be shaken. It had to be another piece of media fiction. If something like this was true, it would be announced formally; someone official from the Commonwealth Government would have been in touch.

In Sydney, Brisbane, Bali and Jakarta, the phones continued to ring out in some kind of bad symphony. It was only early evening in Jakarta, but that didn’t mean it was any easier to find out what was going on from people there.

Four Australian families. Parents huddled together in lounge-rooms over cups of tea, desperate to speak to
their children, but unwilling to frighten them. Vicki Czugaj picked up her mobile phone to send a message to her son but changed her mind. She’d wait until morning. The media had been wrong before.

Earlier she had received a phone call from Christine Rush, who had been told by a journalist that
her
son had been given a death penalty. So too had several other Bali Nine members. Vicki didn’t have to wait long to receive a call from another journalist with the same shocking news. She broke down, hardly able to speak. This was the worst day of her life; worse even than that black day when she had been told about Michael’s arrest. Back then she could hope that it was all a mistake. This time it was different. She wondered how he would cope. The next morning she received an SMS message from Michael. ‘Do you know what is going on?’ he asked.

It was 6 September 2006 and four more young Australians were about to join Andrew Chan and Myuran Sukumaran on death row. The Supreme Court in Jakarta, the highest appellant court in the land, had decided that not only the ringleaders but also four additional members of the Bali Nine deserved the executioner’s bullet. The men had taken the ultimate gamble with Indonesia’s justice system and they had lost. It was a risk they were aware of—appeal courts in Indonesia increase sentences just as easily as they slash them. They had seen it happen to one of their cellmates, the Sierra Leone national Emanuel Otchejirika, who had appealed against his life sentence
for his role in a drug plot. Instead of a reprieve he was delivered a death sentence. That case was well known in the Bali jail. No one wanted to walk in Otchejirika’s footsteps, and no one thought he would have to. Now Scott Rush, Matthew Norman, Si Yi Chen and Tan Duc Tanh Nguyen found themselves doing exactly that.

In the original court hearings Chan and Sukumaran had been sentenced to death and all the others to life in prison. Then, on appeal to the High Court in Denpasar, Chan and Sukumaran’s death penalties were confirmed, as were the life sentences for Rush and Stephens. The others all had their sentences reduced to twenty years. Lawyers and families alike thought that the reduction was a good sign. Those on life wanted to appeal further to the Supreme Court in the hope that all would get reduced terms. Intense meetings were held and the risks laid out to the group and their parents—appeal again and you could still get death. Was it a gamble worth taking? That was the question each family had to answer.

The fate of Martin Stephens and Michael Czugaj was still unclear. They too had appealed their terms in the hope of reducing their sentences. But as they heard about the new death sentences handed down to their friends, Stephens and Czugaj felt sudden, paralysing fear.

None of them slept that night. Not in Brisbane or Sydney or Wollongong and certainly not in Kerobokan, Bali.

As the new day broke, the judges in the Stephens and Czugaj cases said they had not yet made a decision.
In fact, they hadn’t even met to look at the cases and debate the evidence. Then suddenly, within hours, Stephens and Czugaj were granted a reprieve: life in jail, not death. One of the judges described the two as ‘intermediaries’ and not syndicate members, and said they were young and had shown remorse. Life in jail was sufficient punishment for them.

Different judges. Different decisions. Scott Rush and his three colleagues had had their appeals handled by another panel, which decided that narcotics violations posed a great danger to society and to Indonesia, and so sentenced the four appellants to death. The two other mules—who had played the same role as Rush—had got life, but his judges had determined his case more harshly. It was inconsistent and inexplicable. The decisions raised more questions than answers.

Lawyer Yan Apul opened his emails. There was one from Beverley Waterman.
Please treat my child like she is your child
, it said. She wanted to know if Renae should risk appealing again. Lawrence was the only one of the nine to decide against a further appeal. She had got twenty years and decided this was the best she would do. With remissions for good behaviour this would eventually be reduced. While she felt immense sympathy for the others, she was relieved for herself.

Scott Rush, the only airport mule to get death, didn’t know what to think. How could he possibly get the death penalty when the other three, convicted of the same crime, got twenty years or life? He had been afraid this could happen but his fears were cushioned by a
belief that Australians would never be put to death in Indonesia while the two countries enjoyed such a warm relationship. In the wake of the decisions being confirmed, Rush issued a plea to his countrymen through one reporter. ‘Don’t bury us before we’re dead,’ he said, asking the public to help fight the death penalties and give him a ‘second chance at life’. His plea would become the title of his legal team’s appeal. As part of a wider campaign against the death penalty Rush also released a strongly-worded statement through his lawyer. ‘My initial response to this death penalty was that I did not believe it. I felt as though this was just another false media report. When I actually heard the news for myself I knew it was really the beginning of the end. My belief is that I could at least stay the same, on a life sentence. I thought it was also possible to go to twenty years. I have been led to believe that I am only a victim of an organised syndicate. But now I’m the victim of a vicious judicial system that looks upon me as one of the organisers or one of the terrorists. It’s unbelievable and outrageous that they have given the participants to the Bali bombings less time than they have given to me. I need more support by the Australian Government. With more support by the Govt more doorways and opportunities could be opened.’ (Rush was referring to the sentences handed down to those involved in the second Bali terrorist bombings, in October 2005, who had been sentenced to between eight and eighteen years for their roles in the lead-up to the attacks on three restaurants.)

In addition to Scott’s pleas, his parents Lee and Christine embarked on a campaign with the group Australians Against Capital Punishment. They rallied the public at meetings, lobbied authorities and actively encouraged petitions and letters imploring the Australian Government to act decisively. They urged the Government to talk to Indonesia’s President, Susilo Bambang Yudhoyono, about clemency for all six young Australians, and the public to sign pro-forma letters to then Prime Minister John Howard and other Government ministers. One of the pro-forma letters said: ‘The death penalty is a cruel violation of the most basic of human rights and Canberra should use what time is left in the case of the Bali Nine to become internationally vocal and resolute in opposing the death penalty’. Unfortunately, it was not a campaign that resonated with the Australian public. Unlike Schapelle Corby, the Bali Nine had never won their homeland over.

Indeed, the Rush’s outspoken campaign did not even have the full support of all the death row parents or their children, many of whom believed the best chance of saving the lives of the six was in keeping quiet and not bucking the system. Some believed that they should say little and criticise less until the appeal process had been fully exhausted. Some family members also believed that it would be best if members of the nine themselves did not do media interviews, and some were unhappy about stories that, when they appeared, cast Indonesian officialdom and the jail system in a bad light.

When the dust settled on the death penalty decisions it was time for the six to think about the next stage in the appeal process. The group split in two different directions. Lawyers for Chan and Sukumaran and separately Rush’s lawyers opted to take their fight first to Indonesia’s relatively new Constitutional Court. Here they argued that the death penalty for drug crimes contravened the right to life enshrined in Indonesia’s constitution. They further argued that it contravened obligations under Human Rights covenants signed by the Republic, under which the death penalty should only be used in the most serious of crimes. International and local experts were called to testify to these contraventions.

As an indication of how seriously the Indonesian Government took the challenge, which could have wide-ranging implications if the court ruled in the Bali Nine’s favour, the then Attorney-General himself, Abdurahman Saleh, appeared in court to represent the Government. He argued passionately that ‘Indonesia absolutely needs capital punishment. If we do not have it, the fear is that Indonesia will give the wrong message to drug distributors and potential users.’ He set out the Government’s position in no uncertain terms—perpetrators don’t consider what’s right for humanity. And he revealed that if the Bali Nine lost their appeals they could well be put to death by lethal injection rather than by firing squad because the Government was considering what he called ‘more humane’ ways to carry out the death penalty.

For Todung Mulya Lubis it was hard to know whether to take on the cases of Chan, Sukumaran and two Indonesian women also on death row for drug crime. The prominent Jakarta human rights lawyer and his team wrestled with their consciences before eventually deciding that the fight was worthwhile. In their closing address, they submitted to the judges that they had fought with many people who supported the death penalty, including members of their own families. ‘We also fought with our own heart. The honorable Judges, when we were asked to handle this case we did not accept it at once. We needed time, about one month, to finally take it, to make peace with our heart and conscience. It is not easy because we know that we will be harassed and hated. We feel the hate like it’s stabbing our heart when we meet face to face with many people, including when we enter this Constitutional Court.’ On the one hand, Todung personally opposed the death penalty but on the other he also acknowledged the insidious nature of the drug trade. He tells now how he spent long weeks trying to reconcile the two. ‘I oppose the death penalty as a matter of principal because I believe in human rights, I believe in the right to life. But on the other hand I also oppose drug trafficking because it is very dangerous and it kills a lot of people. Many people are killed and suffer because of drugs so it took me almost one month to decide whether to accept the case but I reconciled with myself.’ In the end, to Todung and his fellow lawyers, like Alexander Lay, it
was
a fight worth fighting.

At the same time, with a different set of lawyers, Scott Rush was making the same argument before the Constitutional Court. No one knew whether the nine judges would be prepared to make such a monumental pronouncement about the death penalty,but the court, which had only existed since 2003, was seen as willing to make hard and unpopular decisions. It had, after all, ruled that terrorism laws used to convict the 2002 Bali bombers were unconstitutional.

Importantly, however, the court’s decisions are not retrospective—the ruling didn’t mean the bombers got off. Just the same as this case: a win for the three Australians wouldn’t mean everyone on death row would suddenly be released from their penalty. Before that happened, another court case would need to take place. And in the end, it was academic.

On 30 October 2007 the Constitutional Court ruled, in a six to three majority, against the three Australians and two Indonesian women, and confirmed the status quo—that the death penalty was constitutional for drug crime.

Todung Mulya Lubis, clearly emotional after the decision, described it as a major blow. The Australian lawyers involved said the dissenting judgments were powerful, and that they had taken heart from some sections of the written judgment which suggested the Indonesian Government should revise the Criminal Code so that prisoners on the death penalty could be considered for reprieve to life or twenty-year sentences after a ten-year period of good behaviour. Lawyers
spent the next few days visiting their disappointed clients in jail and working out the next legal steps. But the mood was very low.

Norman, Chen and Nguyen were taking a different tack. With a new lawyer in tow they had opted to go straight to filing a judicial review or extraordinary appeal with the Supreme Court, the same court which had increased their sentences to death. They were arguing the inconsistency of the sentencing process and highlighting the fact that prosecutors in their case had never requested or suggested they deserved death—only a life sentence had ever been sought. The evidence was heard in the Denpasar District Court where the trio made public appearances and their own mercy pleas, reading from handwritten statements.

Strikingly, they had changed their stories. At their original trials the so-called Melasti Three denied any knowledge of the drug shipment or anything to do with it. Back then they stayed silent about any involvement despite the fact that talking might have earned them a more lenient sentence. They were, they claimed, in the wrong place at the wrong time, and felt regret but not guilt. Now, staring down a death sentence, they had been advised that talking might help them, so talk they did. Through a witness who had interviewed them in jail, they confessed that they had indeed, as prosecutors alleged, been waiting for a second heroin shipment to courier home. They also revealed that they had been getting cold feet about the whole plan and had thought of abandoning it. Their personal pleas were laden with
the contrition they had failed to show at their original trial.