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
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
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
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
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