Sunday, 18 July 2010

It’s A Bit Too Late For A Guilty Conscience

I feel for Scott Rush and his family. I really do. No one should have to go through what they have.

What really irks me though, is the sudden concern of the Australian Federal Police for the fate of Scott especially when it was them who effectively sentenced him to death. Scott’s father, Lee, tipped off the authorities about what Scott was doing in an attempt to save his son from a potential disaster. What the Feds did next is inexcusable - they informed the Indonesian authorities. Instead of stopping Scott from travelling overseas or waiting for the Bali Nine to arrive in Australia and arrest them, they opted to inform the Indonesian authorities knowing very well that they may face the death penalty. I can not even comprehend how guilty and betrayed that Lee Rush must be feeling. Trusting the AFP was the biggest mistake of his life and something that will haunt him forever.

Any rational person knows that Indonesia’s barbaric drug laws are straight out of the dark ages. In addition, it is common knowledge that Indonesian prisons have been condemned by human rights groups as cesspools, not worthy of housing animals let alone people. So why did Mick Phelan, the lead investigator tip off the Indonesian authorities knowing the accused may face the death penalty? Whatever the reason was, Phelan is now the AFP deputy commissioner. 

Even with the aid of hindsight, should the same set of circumstances present themselves again with another syndicate or other people, we would do exactly the same thing
--Mick Phelan (ABC's Australian Story)

Was this really an appropriate comment from a government organisation that is meant to protect Australian citizens? This and similar comments only added to the growing disillusionment with the role of the AFP and the government in protecting Australian citizens overseas. With the Schapelle Corby debacle still making headlines and government inactions involving the hanging of Van Tuong Nguyen in Singapore, many Australians were sceptical of Australia’s commitment to help the Bali Nine. 

So why is Phelan now so keen to help Scott Rush? What has convinced him to fly to Indonesia and testify on his behalf? 

The AFP was pilloried for its behaviour, knowing that Indonesia can apply the death penalty for drug crimes, and considerable pressure has been put on it to do everything it can for Rush

But Phelan is not the only one to suffer a guilty conscience. Several years ago, the then AFP Commissioner, Mick Keelty wrote a letter declaring that Scott Rush was indeed only a courier. This has been followed up by a recent letter dated May 2010 from Keelty, stating that fellow inmate, Martin Stephens was also only a “minor” player in the Bali heroin bust. At least one media report has claimed that Keelty is feeling remorse over his actions with the Bali Nine.

The episode is understood to haunt Mr Keelty, a devout Christian who personally opposes the death penalty and has now retired

It might seem noble to now make amends but their actions did help send these young people to hell and back. 

At the time, there was a treaty between Indonesia and Australia, where both countries could refuse to cooperate in a police investigation if the crime under investigation carries the death penalty. Under section 22(3) of the 1988 Extradition Act, the Australian attorney-general can only extradite a prisoner if assurances have been received that the death penalty will not be imposed or carried out. Defending the treaty breach, an arrogant Keelty made this excuse:

The policy is that we will not give evidence that will, or information that will, directly cause or result in somebody receiving the death penalty. But the reality is in this case, it would appear, on the allegations, that these people have been caught red-handed with heroin in Indonesia
--AFP Commissioner Mick Keelty

Yes, but only after a tip off by the Australian Federal Police. 

Lee and Christine Rush not only did what they thought was best for their son but acted above and beyond the duties of an Australian citizen. This incredible act of rectitude would ultimately ruin their lives because a bureaucratic process was more important than their son’s life. Why was a promise from one of Keelty’s minions, somehow impossible to keep in an organisation that has more wriggle room than a worm farm.

We would never have given any assurance, because there was no lawful reason to prevent him from travelling. My sympathy is with Lee Rush because somebody has misled him. Whoever gave Lee Rush the assurance that his son would be prevented from travelling acted dishonourably. There is no way anyone in the AFP would have provided that assurance because there was simply no power to detain him. He was not wanted on warrants, there were no conditions of his bail that prevented him from travelling overseas

Scott’s mother, Christine Rush summed it up.

I feel very let down by our Australian Federal Police – we tried to lawfully stop our son leaving the country, it wasn't done
The Federal Police can do, go wherever they want, do anything, anytime without supervision from the Australian Attorney-General or from the Justice Minister
This is not good for Australians and our laws need to be changed to protect our citizens and this must not happen to any Australian citizen again
-- Christine Rush

The Australian Federal Police have let down the Rush family, the Bali Nine and the Australian community. And their actions were supported by the PM, John Howard, the opposition leader, Kim Beazley, the Federal Justice Minister, Senator Chris Ellison and even the Federal Court. Maintaining ties with Indonesian has been a key ingredient in Canberra’s strategy for many years, despite the corruption, the human rights violations and barbaric practices that conflict with Australian standards. Why would the government let the lives of 9 lowly drug traffickers risk this special relationship?

Andrew Chan, Si Yi Chen, Michael Czugaj, Renae Lawrence, Tach Duc Thanh Nguyen, Matthew Norman, Scott Rush, Martin Stephens and Myuran Sukumaran conspired to import heroin into Australia. They are not murderers, rapists or violent thugs. The penalties, so easily dished out by the Indonesian courts are simply not reflective of their crimes and if they were apprehended in Australia, they would all be free now. Something is very, very wrong with this situation and unless something is done, we will continue to lose our loved ones because of misguided, manmade laws and the authorities who let it happen.

Soon I Learn Whether I Live Or Die, Rush Writes
By Tom Allard
July 2010

Unable to sleep in Kerobokan prison's death tower and aware his final legal appeal to overturn his appointment with an Indonesian firing squad was about to be lodged, Scott Rush composed a letter yesterday.

''This is likely to be my last chance to write to you before I know whether I live or die,'' he wrote to the federal parliamentarian Chris Hayes, one of many letters he has sent the MP since his arrest in April 2005. ''I am not a celebrity, I am a criminal deserving just punishment.''

It was a brutal sentiment characteristic of the youngest member of the Bali Nine drug smuggling ring, who is one of three on death row. He was unflinching about his fate and his own failings.

For his family, supporters and Indonesian and Australian lawyers , ''just punishment'' is not death but a 15-year jail term, the core of the judicial review submitted on his behalf yesterday.

A comprehensive and compelling case has been assembled. In an extraordinary development, Mick Phelan, the man who led the Australian Federal Police investigation into the Bali Nine and tipped off Indonesian authorities, has been persuaded to testify in Bali on Rush's behalf.

Rush's father, Lee, had pleaded with the AFP before his son took the fateful trip to Bali - his first overseas - to stop him from travelling, suspicious that Rush, dabbling with drugs, was planning to travel to Bali despite having no money.

The AFP was pilloried for its behaviour, knowing that Indonesia can apply the death penalty for drug crimes, and considerable pressure has been put on it to do everything it can for Rush.

Among the others testifying for him will be an Australian-based Islamic cleric, Suliman Sabdia, a Catholic priest, Father Tim Harris, and Rush's former solicitor, Judge John North.

Judge North has a letter from the former AFP commissioner Mick Keelty acknowledging Rush was a minor player.

Mr Phelan, who is now a deputy commissioner, has also provided a sworn statement for Rush, stressing he was only a courier and this was ''his first involvement in an importation of drugs''. ''Given recent sentencing history in Australia for similar offences, it is highly likely that a sentence much lesser than the maximum of 25 years would have been imposed on Scott Anthony Rush if he had been prosecuted in Australia,'' the statement says.

The AFP evidence will be pivotal to Rush's case, which rests in large part on proving Rush was only a courier. It also constitutes new evidence, one of the requirements under Indonesian law for a judicial review of a death penalty sentence.

Other arguments are that other Bali Nine members who played a similar role were given lighter sentences, and that Indonesian law requires that the death penalty be applied selectively.

Professor Andrew Byrnes from the University of NSW, who is recognised by Indonesia's Constitutional Court as an impartial expert on international law and the death penalty, has also provided a submission and will testify for Rush.

Numerous errors have also been identified in the sentence, including the assessment that only the death penalty can apply in Rush's case and a failure to consider mitigating circumstances such as his age and remorse.

It is also argued that Rush was incorrectly found to have ''exported'' drugs, when, in fact, he was arrested with heroin strapped to his body at Denpasar airport before passing through Indonesian customs.

Rush is unaware of much of the detail of his case, including Mr Phelan's unprecedented testimony.

''I truly feel sorry for the hurt and pain I've caused to my parents,'' he writes to Mr Hayes.

''I hope to have the chance to proove [sic] I am capable of reform. I want to give back to my community and be an ambassador against drugs.''

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