Indonesian Justice

Despite the billion dollar tsunami aid package pledged by Australia to the Indonesian government, relations between the two are going through a low ebb, at least according to Professor Tim Lindsey in his interesting public lecture at the Melbourne University Law School. Professor Lindsey is a legal academic, and has kept a very close eye on three important events that are shaping the bilateral relationship - the Schapelle Corby case, the Bali Nine, and the trials of the Bali bombers. In each case, the Indonesian legal system has taken a batterring, at least in the eyes of the Australian public, via the tabloid media.

Lindsey argues that the criticisms levelled at the Indo justice system are ignorant and incorrect. There has been plenty of baseless scuttlebutt circulating, including suggestions that the justice system has a presumption of guilt rather than innocence, that the judges' verdict is predetermined, and the notion that the Australian government should do more (more what is never made clear) to help its citizens on trial overseas. Lindsey challenges these ideas, and suggests that the Indonesian legal system has a history grounded in Dutch (and by extention, French) legal process, which may be foreign to Australians, but is quite common around the world. The legal system undoubtedly has his flaws, Lindsey admits: corruption is still widespread, resources are scarce, and basic infrastructure - such as court transcripts and a decent translation service - is lacking.

Instead of blaming the justice system, in the case of Corby, Lindsey argues that an incompetent defence is to blame. Despite having good cause to challenge the intregrity of the physical evidence, after the Indo police failed to fingerprint the bag, Corby's defence failed to score a hit (pardon the pun) and instead focused on an emotive case, likely to win over the audience of A Current Affair, but less likely to woo a panel of hard-nosed Indonesian judges.

So what are the likely verdicts for Corby and the Bali Nine? Lindsey seemed certain that Corby would escape the death penalty, and after appeals and the possibility of Presidential clemency, would end up serving 15 to 20 years. He was sceptical of the possibilities for a prisoner transfer to Australia, explaining that there were technical and legal issues to be resolved first, particularly the likely arrangement the that Indonesians currently held in Australian prisons would need to be repatriated. The outcome for the Bali Nine is even more pessimistic - with the physical evidence strapped to their bodies, it was going to take a supremely dedicated defence team to punch holes in the evidence.

As for the Bali bombers, it was the death sentence for some, but a pitiful sentence for others (albeit just today upheld):

Jakarta High Court has upheld radical Islamic cleric Abu Bakar Baasyir’s 30-month jail sentence for involvement in the conspiracy behind the October 2002 Bali nightclub bombings that killed 202 people.

Comments

Jeremy said…
baseless scuttlebutt circulating, including suggestions that the justice system has a presumption of guilt rather than innocence, that the judges' verdict is predetermined

Well, if the judge is going to make statements before issuing his judgment like "the defence hasn't proven her innocence", what other conclusions can be reached?
Jeremy said…
Two things:

(1) Did he speak about the intruiging constitutional issues regarding the overturning of the bali bombers' convictions on reterospective anti-terrorist laws? That was a fascinating constitutional court case and showed that the Indonesian constitution protects human rights better than ours does.

(2) Did he mention the details of what the prosecution has to show to prove Corby's guilt under their trafficking laws? I'm suspecting they're laws of strict liability, so no more than possession needs to be shown (intent is irrelevant, knowledge may be relevant but is easily constructed). This is the same in Australia for the most part and I think Corby would be found guilty in Australia as she almost certainly will be in Indonesia regardless of her claims not to know about the drugs.
Guruann said…
It was a facinating lecture, I was the one that posed the question about not having transcripts available, there is audio available of the lecture, link from my blog.
Anonymous said…
i still think she is innocent s
Anonymous said…
Well actually Jeremy, the criminal law in Australia varies from state to state. No criminal laws are strict liability, as you suggest. All crimes require "mens rea"--a guilty intent--otherwise they are not crimes.

Schapelle would almost certainly not be convicted in Australia because we have:

1) trial by jury
2) onus on prosecution to prove guilt beyond reasonable doubt
3) strict evidentiary requirements which might have seen the failure to film/fingerprint as fatal to the prosecution case.

Also, the judge would have to disqualify himself from sitting if he made comments in the media like the Chief Judge in Denpasar.
Jeremy said…
@anon: I'll address each point in turn

"No criminal laws are strict liability, as you suggest. All crimes require "mens rea"--a guilty intent--otherwise they are not crimes."
That's flat out wrong. Read He Kaw Teh. It's stupidly long, I realise, but it contains a very detailed discussion of offences of strict and absolute liability in the criminal and regulatory law. It is specifically in the context of a drug importation statute and it upheld the strict liability interpretation. We have no constitutional prohibition requiring a criminal offence to have a mens rea element and many crimial statutes, particularly drug importation/possession laws, have a minimal (strict liability) or even no (absolute) knowledge/intent requirement.

Trial by jury. This doesn't mean anything. Emotional pleas don't sway juries, or else everyone who was found with drugs and said "it wasn't me" would get off and they simply dont.

Reasonable doubt. It's the same in Indonesia, but you gotta remember that reasonable doubt works quite different in strict liability offences. Once the fact is established you've pretty much gotta positively show it wasn't yours.

Evidence. I might agree with you here, though I don't know the details, but this is a fault of the defence team if anything and not the Indonesian system.

Judge. That shows an ignorance of the indonesian inquisitorial system. They are allowed to do those kind of things in contrast with our adversarial judges.
Anonymous said…
Ms Corby met her sister not to celebrate Mercedes 30th, but to meet her sister so Ms Corby can store the drugs somewhere than sell it. The drugs are from Queensland. When asked if Ms Corby was ever married she quickly replied that she has never been married. We all know that she was married to a Japanese surfer. We have all seen the pictures. Another fact-Ms Corby also travels to Melbourne under the false identity as Priscilla Bell. The difference to her appreance is that she has blond her and would wear green contact lenses. Worked for a company called Camp Australia Pty Ltd and would tell people that she was married to a lawyer. Worked at the schools St Leonards, St Marys-St Kilda and St Kevins College, as Ms Bell. She has know have had breast implants and liposuction done to herself. WEre can one find all that money. For a uni student in Quuesland we all know that surgery is very expensive. She has slso told people while working in Melbourne that she was an Arts uni student completing her studies at Deakin Uni as a coprrespondant student. She would sell drugs to high schools kids. Her defense team strategy was to win over the audience of the media and current affairs so the public can believe her innocence. And people have been folled and sucked into there 'stories'. Used the information about the French man that too was arrested at the same airport as Ms Corby for smuggling drugs and used that for their defense. The French man too claimed that the drugs were not his and was planted there by baggage handlders. Hello! Her defense team in australia are also into drugs. In the year 2000 Ms Corby alia Ms Bell, i wonder if she has any other names, was seen by witnesses travelling to Bali with Mr Ford. Was overheard saying to her sister about drugs. Her defense team has not proven her innocence becasuse she is guilty and knew that the drugs were there. That is way she went to Bali to smuggle the drugs.

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