The World Today - Friday, 29 April , 2005 - Reporter: Eleanor Hall
ELEANOR HALL: Two high profile Indonesian legal actions have been dominating the headlines here this week.
The two drug smuggling cases involving Australians – one, the Shapelle Corby trial and other the arrest of the nine Australians known as the Bali Nine – have sparked enormous public interest and sympathy, and concern about just how the Indonesian justice system operates.
In a moment we'll hear from an Australian lawyer who had a role in devising the new Indonesian legal system and strongly defends it.
But joining us now in Melbourne is Indonesia analyst Damien Kingsbury, from the School of International Political Studies at Deakin University, who argues the Indonesian justice system in practice has some serious flaws.
Dr Kingsbury, thanks for joining us.
First to the arrests of the Bali Nine. There's been criticism of the Australian Federal Police for its role in this joint operation with the Indonesians. Has that been warranted in your view?
DAMIEN KINGSBURY: I think that the role of the Australian Federal Police in working with Indonesian police should be applauded generally. I think the problem here is that they've involved themselves in a case that brings potentially a penalty that is simply not acceptable in the Australian judicial system. So there's a moral question that's been raised there by that activity.
ELEANOR HALL: You're talking about the death penalty, but the Australian Government had no problem with the death penalty when it was the Bali bombers who were on trial.
DAMIEN KINGSBURY: Well, that was obviously a subjective judgement, but I think in principle that the issue of the death penalty does raise some serious moral questions in Australia, and involvement of Australian authorities in having that sentence effectively, or potentially, applied to Australian citizens abroad does raise a major dilemma.
That's not to suggest that the Australian Federal Police shouldn't work with the Indonesian police. Indeed it's been probably the most important element of a rebuilding of the relationship between the two countries. But that particular element of it – the death penalty – really does need to be separated out and considered on its own merits.
ELEANOR HALL: What should the Australian Federal Police have done in this case then?
DAMIEN KINGSBURY: Well, it's easy to judge from the outside, but clearly some of the offenders, or alleged offenders in this case, were on their way to Australia. They could have been arrested once they'd arrived in Australia, and the five who remained have been arrested in Indonesia. That wouldn't have involved the death penalty, at least on face value it wouldn't have. That was one option.
They did want to get them all, though, in one place, and that's why they worked with the Indonesian police to nab them there. Unfortunately, as I say, though, that's raised some very difficult moral dilemmas, and has called into question the nature of the cooperation.
ELEANOR HALL: Now, the Schapelle Corby trial. Of course she gave her impassioned plea in court yesterday. Has she been given a fair trial?
DAMIEN KINGSBURY: Well, it depends on what you mean by fair. Certainly within the Australian context it wouldn't be seen as fair. But within the Indonesian context it's probably fairly standard.
That should be noted, though, that the Indonesian judicial system really does have a number of flaws in it. It operates on a judicial process, or a judicial canon, which is questionable in the Australian terms, there's an assumption, generally, of guilt.
The rules of evidence are very poor, the training of both the judiciary and the defence teams is often very, very poor, and they don't have rules of sub judice and so on.
So in an Australian sense, no, it's not fair, but in an Indonesian sense this is pretty much standard practice. Unfortunately standard practice in Indonesia operates at what might be called a sub-optimal level.
ELEANOR HALL: You're saying that the Indonesian and Australian systems of justice are quite different, particularly on issues like the presumption of guilt, then?
DAMIEN KINGSBURY: Absolutely, I mean, they're almost diametrically opposite.
The method in which the trials are conducted in Indonesia is quite different. It's more of an inquisitorial process, whereas in Australia there's a presentation of evidence, there's issues of doubt and reasonable doubt, which doesn't exist in Indonesia.
It really functions in a very different manner. This is not even to mention, of course, the capacity for judges to be influenced by external sources – political influence, bribes, and so on.
ELEANOR HALL: So what do you consider the main flaws in the Indonesian justice system as it applied in this case?
DAMIEN KINGSBURY: Well, there's essentially an assumption of guilt that appears to apply here. The rules of evidence certainly have significant holes in them, and had the evidence been handled properly, I think that there would have been at least reasonable doubt to assume that Schapelle Corby was not an active drug courier.
ELEANOR HALL: When you say the evidence handled properly, you mean before the case came to court?
DAMIEN KINGSBURY: That's right. I mean things like fingerprinting, the weighing of the drugs, checking that against the original baggage weight when the baggage was checked in and so on. I mean, these things could have shown that there was external interference in the process, and raised doubt.
Unfortunately, though, in the Indonesian system the issue of doubt or a matter being beyond reasonable doubt doesn't really occur the way it occurs in Australia.
ELEANOR HALL: How do they make a judgement then?
DAMIEN KINGSBURY: Well, basically it's made up of the prima face evidence – the bag was hers, there were drugs in it – and then it's a question of trying to explain how that might have happened one way or another.
If you want to find innocence you have to offer up a plausible excuse that's backed by hard evidence. Unfortunately in this case that hasn't happened, and in part that's been because the evidence has been so badly handled. In part I think it reflects fairly poorly on Schapelle Corby's defence lawyer.
ELEANOR HALL: Damien Kingsbury from Deakin University, thank you.
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