Saturday, 25th February 2017

The goal: legal/law-enforcement systems that mete out justice and uphold human rights

 

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An example: Pre-trial detention can sometimes last for years, with some detainees serving longer pre-trial imprisonment than their maximum possible sentence. During the course of an average year, approximately 15 million people are detained pre-trial. The current 3.3 million pre-trial detainees represent an awful waste of human potential that comes at a great cost to governments, taxpayers, families and communities, particularly since an estimated 10,000 of them die each month. Modern technology can be used to inexpensively ensure police, prosecutors, judges, NGOs, defendants, defendants' supporters, etc. understand due process regulations and how they apply to pre-trial detention. Public money is saved by reducing pre-trial detention costs. Overcrowding in prisons and the socio-economic costs of pre-trial detention are avoided.

 

Our strategies to combat such costly injustice are part of a long-overdue paradigm shift in an industry that is often all too well endowed, but short on results. They advance humanity in that they focus on changing legal systems through accountability - accountability that comes from transparency and information provision. They are innovative, dynamic, flexible, solution-oriented and cost-effective. 

 

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Indonesian Legal System

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Two Nigerians, Samuel Iwachekwu Okoye and Hansen Anthoni Nwaolisa, each received a bullet to the heart, on 26th June, 2008 on Nusa Kambangan Island, Central Java, Indonesia.

They had been convicted of drug smuggling and, on International Day against Drug Abuse and Illicit Trafficking, they became both message and messenger by being shot. During July, 2008, four Indonesians met a similar fate, but for serial murder.

Executed on flimsy evidence

Malaysian national, Chan Ting Chong’s death in 1995, was Indonesia’s first drug-related execution, albeit on the flimsiest of evidence that was later retracted. Since then, contrary to the international trend, pressure in Indonesia to use the option to kill others convicted of drug trafficking under the Law on Narcotics was building in fits and starts.

After a 14-month lull in executions, in October, 2007, the Indonesian Constitutional Court confirmed that hard drugs are a serious threat to the cultural, economic and political foundations of society and ruled that the death penalty option for drug offences is not in breach of the constitution.

Attorney General, Hendarman Supandji, on the day the Nigerians were executed, declared the executions of the other 58 drug offenders on death row would be accelerated and the chairman of the National Narcotics Agency, Commander General I Made Mangku Pastika, urged that death sentences on drug offenders be carried out immediately. Even President Susilo Bambang Yudhoyono who, like his predecessor, is known to be an ardent supporter of the death penalty, felt the need to publicly confirm he would not pardon drug offenders. During the 2009 general election campaign, government officials and politicians vied to be seen as tough on crime, especially drug-related crime. Law enforcement wins votes, but seldom are political posturing and justice compatible.

Undermining human rights

Even for the heinous crimes under Indonesia’s Human Rights Courts legislation, internationally the death penalty is viewed as undermining human rights. Yet, despite a UN Special Rapporteur calling for the death penalty to be “eliminated for crimes such as economic crimes and drug-related offences”, while still a presidential candidate, Susilo Bambang Yudhoyono urged that the death penalty be imposed for corruption, saying that, “whoever commits a crime – whether they be the corrupt or gross human rights violators – should face capital punishment. But everyone must go through a credible court system”.

Corruption is deeply ingrained

A credible court system, though, is not what Indonesia has. Rather, its serious dysfunction was confirmed to U.N. Special Rapporteur from the Human Rights Commission, Professor Manfred Nowak, who visited Indonesia in November, 2007. He received “numerous and consistent allegations that corruption is deeply ingrained in the criminal justice system. Several sources indicated that at every stage, starting from the police and the judiciary to the detention centres and prisons, corruption is a quasi-institutionalized practice”. Failure to pay, for example, a prosecutor up to the Rp. 400 million some demand in drug cases, sometimes in collusion with judges and lawyers, can lead to the innocent being executed.

Torture common

Not only does legal system corruption routinely undermine fair trials in Indonesia, so does torture, particularly in cities. Professor Nowak, found that by far the majority of the detainees he met had been subject to abuse and torture to extract confessions that were later used in court proceedings and accepted as valid evidence. Kickings, beatings with fists, shoes, sticks chains, iron bars, hammers and cables, gun shots through the calf and electrocution were all reported and confirmed forensically to Professor Nowak.

Torture sessions by the police that last days and take place in private houses, also include the thrusting of screwdrivers in ears, mock executions using loaded pistols, and the beating or burning of soles of the feet. Since suspects may be held in police custody for many times the permitted sixty-one days, on release or transfer, signs of injury are less evident.

The willingness of courts to accept witness testimony implicating others that is often motivated by a desire to offload blame or a personal grievance, along with poor or no access to legal representation and, for foreigners, the absence of any interpretation provision by the state during the police investigation or prior to their trial, makes the situation even worse.

Lawyers beaten and flawed pleas

In some cases defending lawyers are beaten to deter them from entering a robust defence and prison officials, unbeknown to the death row inmate, submit flawed pleas for clemency in order to facilitate speedy rejection. Prevailing prejudice in Indonesia that equates Africans with drug dealing exacerbates the chance of unjust killings of African nationals even more.

These serious flaws in the judicial process that, through the death penalty, result in an irreversible miscarriages of justice, prompted Amnesty International to ask Indonesia to “take concrete steps to ensure that all prosecutions, in particular those for crimes carrying the death penalty, meet the highest international standards for fair trial. This would include the right to adequate legal representation at every stage of proceedings, adequate access to interpretation and freedom from torture or ill-treatment.”

Indonesia has ratified the major United Nations human rights treaties outlawing torture and section 7(2) of Indonesia’s Law 39/1999 on Human Rights provides that such treaties automatically become part of domestic law. Further, Article 28I (4) of Indonesia’s Constitution makes it clear that it is the state’s, especially the government’s, responsibility to “protect, advance, uphold and fulfil human rights” and article 28G (2) specifically states that “each person has the right to be free from torture or inhuman and degrading treatment”.

The drug problem in Indonesia is a growing one and politicians are right to be concerned. Ministry of Health data indicate there are some eight million drug addicts in Indonesia and fifteen thousand of them die each year.

Recommendations

In line with this, Professor Manfred Nowak, as an invited guest of the Indonesian government, after his visit, recommended that, in the interests of justice: all interrogations should be electronically recorded, confessions made in custody in the absence of a lawyer should not be admissible in court, the onus should be on the prosecution to prove duress was not used and police custody should not exceed the international standard of 48 hours. He also recommended that the death penalty should be abolished, but until it is it must be carried out with transparency.

Drug related cases in Tangerang Distict Court, which is famed for meting out the death penalty to drug dealers, rose from just 20 in 1998 to 386 in 2005. Yet even the court’s Judge Suprapto, otherwise known as Judge Death, concedes that the harsh penalties are not working. His view is consistent with the absence of any evidence internationally that capital punishment deters drug trafficking and points to the need to adopt less crude and more humane methods to deal with the problem.

Many view the premeditated taking of a human life as immoral under any circumstances, but for those who do not, the taking of an innocent life through judicial process surely is. In relation to this latter moral stance, President Susilo Bambang Yudhoyono’s “credible court system” proviso is absolutely correct.

Thus, for Indonesia to morally justify its death penalty, it is imperative that it first root out corruption and torture in its legal system and, further, until it does so it precludes itself from adopting the moral high ground that is essential to counter narcotics abuse.

For, to execute without the most rigorous possible processes to protect the innocent is part of the very failure of morality and integrity , and it is this ground on which the death penalty should be challenged in the Constitutional Court and society at large.

You can help us change this. Contact us now. Furthermore, awareness, transparency and accountability change the law-society interface and dynamics, so that fair trials and equality before the law can become a reality through societal pressure. You can donate to our work here:

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Resources:

 

"Indonesia: Law and Society" – edited by Tim Lindsey. A.

 

Combating Corruption in Indonesia – Enhancing Accountability for Development – World Bank report

 

Policy Brief on Corruption and the Judiciary in Indonesia 2008 Special U.N. Rapporteur on Torture Concludes Visit to Indonesia, Jakarta, 23rd November, 2007.

 

Unfinished business: Police accountability in Indonesia

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