Indonesia: the quality of justice

Tuesday, Australians Andrew Chan and Myuran Sukumaran, and seven other foreigners, will face the firing squad for drug offences. But inconsistency in sentencing sees foreigners cop the heaviest penalties while some Indonesians are shown leniency, writes Hamish McDonald.

It will be scant help to the two Australians and six other foreigners now facing imminent execution on Nusakambangan Island, but the case of fellow convict Serge Atlaoui, now subject to temporary reprieve, shows the inconsistencies and favouritism of the judicial system which sentenced them.

Atlaoui, a 51-year-old French citizen, is the first to face the firing squad out of 17 people arrested in November 2005 in a police raid at Tangerang, close to Jakarta, on what was described as the largest methamphetamine and ecstasy pill factory to be busted in Southeast Asia.

The Indonesian police said they had seized 62.4 tonnes of chemicals used for crystal methamphetamine and 6.6 tons of chemicals used to make ecstasy, as well as thousands of ecstasy pills and hundreds of kilograms of methamphetamine about to be transported to Hong Kong. Some of the precursor chemicals had arrived in shipments labelled as soy-beans.

Indonesian media reports said the raid followed months of surveillance by Indonesian, Australian, US and Chinese police.

Among the 17 arrested were the two Indonesian businessmen described as the ringleaders of the drug operation, the factory owner Benny Sudrajat (also known as Benny Oei) and his deputy, Budi Sucipto (alias Iming Santoso).

However a Chinese businessman known as Peter Wong, who seems to have helped with finance, sourcing of raw materials and assembly of technical expertise, escaped after later arrest, and is still wanted by Indonesian police.

Four other Indonesians went on to be charged in the case: a storekeeper named Samad Sani, a chemist named Hendra Raharja, Sudrajat’s son Kevin Saputra, and a maintenance man named Toto Kusriadi. Four others, an electrician and three security guards, were released without charge.

The Frenchman, a welder by trade, was one of two Westerners, the other being a Dutchman named Nicholaas Garnick Gerrardus, alleged to have been a chemist. A third Westerner, a Dutchman known as “Max”, appears to have escaped arrest.

Five Chinese citizens comprised a third group, said to be specialised in the production of methamphetamine, known in Indonesia by its Japanese-origin name, shabu-shabu.

Curiously, the three groups were given separate trials.

The two alleged masterminds, Sudrajat and Sucipto, were found guilty and sentenced to death, a penalty upheld at two levels of appeal. Both filed last year for a peninjauan kembali (PK, a trial review) which is still in the course of hearing by the original court.

Three other Indonesians (Samad, Rahardja, and Saputra) received jail sentences of 15 years, raised to 20 years on appeal. The fourth, Kusriadi, got 10 years.

The five Chinese each received 20-year jail terms, which were affirmed at the first appeal, then raised to the death sentence at the final appeal. One of them died in detention, and the other four have had PK applications before the Supreme Court apparently since early last year, without a decision.

The two Westerners received life sentences at their trial, which were upheld at the first appeal, and then elevated to the death sentence at the final appeal to the Supreme Court. The Dutchman, Gerrardus, has died while in jail, and the Frenchman, Atlaoui, still has a PK under way.

The ultimate sentencing seems to show a tendency for the foreigners to cop the heaviest penalties. All the foreigners ended up with the death penalty, while some of the Indonesians were shown relative leniency. And as Diane Zhang has previously shown, in 2015 there are more foreigners slated for execution than the total killed in the previous 16 years.

Notably, would Altaoui, a welder helping put the factory together, have been more implicated in the grand scheme of drug manufacture than the boss’s son, Kevin Saputra, or the chemist Hendra Rahardja?

Justice has shown itself less than impartial in the handling of the PK processes. The ringleader, Sudrajat, has been allowed to call witnesses and experts other than those called to previous hearings of the case. Atlaoui has not.

The Frenchman, who has been held in a prison remote from Jakarta, has had to pay the costs of getting himself and a heavy police escort to the capital for hearings of his case review. The attitude of the prosecutor at the review has been that it is a mere formality, and at the start one of his officials asked Atlaoui for his body measurements to prepare for the execution.

The Dutch chemist, now dead, tried to clear Atlaoui by saying his work was simply to set up machines, and that he had not helped any production tests. Although supported by police evidence, the Frenchman never had this point accepted by the courts, and the final appeal judgement called him a chemist. Atlaoui has insisted all along he thought he was helping build an acrylics factory.

Up until a day or two ago, the Indonesian authorities were pressing to have Atlaoui face the firing squads alongside Andrew Chan, Myuran Sukumaran and others in their execution batch.

This was despite the fact that six other death row convicts in the Tangerang drug factory case, including the alleged principals, still have ongoing case reviews which might cast a different light on Atlaoui’s level of involvement – and the professed Indonesian policy that convicts in the same case like Chan and Sukumaran should be executed at the same time.

The suspicion must be strong that the foreigner was to be scapegoat while the influence of the businessman Sudrajat was at work in the Supreme Court to eventually reduce or indefinitely delay his sentence.

In the event, the strong statement of the French foreign minister, Laurent Fabius, pointing out the vagaries of a “dysfunctional” Indonesian judicial system, has pulled Atlaoui out of the execution list, at least for now.

That Chan and Sukumaran are guilty of trying to smuggle commercial quantities of heroin is beyond doubt, and not contested.

That their appeals and reviews have been heard by such a flawed system , and that then, after 10 years of successful rehabilitation, their sentences were ticked off by a new president intent on showing himself tough on drugs, will not reflect well on Indonesia if the executions are carried out, on them or the others scheduled for the firing squad.

After all, doesn’t the second principle of Indonesia’s five-point state ideology, the Pancasila, read: Kemanusiaan Yang Adil dan Beradab – A Just and Civilized Humanity?

It would seem, when appropriate, Indonesia can be as inconsistent with ideology as it is with justice.

Hamish McDonald is author of Demokrasi: Indonesia in the 21^st Century and Journalist-in-Residence at The Australian National University’s College of Asia and the Pacific.