I am ready to assume, at least for the sake of argument, that Schapelle Corby is totally innocent and that someone else planted marijuana in her boogie bag. However, I am perplexed with Corby’s supporters who have launched a tirade protesting her innocence, and at how media and the Australian Government have responded to this campaign. As the editorial of the Sydney Morning Herald suggested the other day, there has been “too much talk about Corby”. But more than that, for several reasons such talks have been nonsensical for most of the time.
So, what is it that is troubling Corby’s supporters and sympathisers? Are people pained by the prospect of wrongful conviction of an innocent woman? Or are they concerned about Corby being denied a fair trial by a country that had an imperfect judicial system in the past? Or is it the fact that Corby, an Australian, could face a firing squad, or life imprisonment under degrading conditions in Indonesian prisons? Or are her supporters puzzled by the fact Indonesian courts might take the life of an (allegedly innocent) Australian citizen whereas Australia’s one billion dollar aid has helped to save the lives of so many Indonesians?
I think that probably a mixture of these concerns - some of which are misplaced - has motivated Corby’s supporters to behave in a way that is repugnant to the rule of law. Falsely claiming that Indonesian prosecutors offered to take a bribe in return for asking a lighter sentence for Corby; sending death threats to the Indonesian Embassy in Canberra; “hammering” those who think her to be guilty; or threatening to boycott Bali as a tourist destination if Corby is found guilty. All these smack of disrespect for the rule of law. Rules are to be respected whether or not they bring favourable results.
On a closer scrutiny, it seems that many of the above apprehensions of Corby’s supporters are baseless and should be rejected outright.
To begin with, it is non-contentious that every wrongful conviction must be avoided, especially if one favours the “due process model” over the “crime control model”. However, even under the due process model the determination of innocence or guilt of a person is to be done within the boundaries of an agreed legal process, and not on the basis of conscience or public opinion.
If for any reason Corby’s lawyers fail to provide enough evidence - a burden that was entirely on them in this “special” case - to prove that Corby is innocent or at least are unable to cast doubts about her being guilty, it does not necessarily follow that Corby should be freed. It is beyond dispute that marijuana was found in Corby’s bag and it is for her not only to plead but also establish why she did not illegally import marijuana into Indonesia.
Why is this case special? This brings us to the second erroneous belief held by Corby’s supporters. It is claimed that she has received an unfair trial because she was denied the presumption of innocence and there was no jury. Moreover, that “Indonesian authorities have a history of murdering innocent foreigners”.
Although the matter is sub-judice and the Indonesian court is scheduled to deliver its verdict today, those who assert this are neither aware of relevant Indonesian laws nor appreciate the general principles of criminal law. Presumption of innocence is an important but not an absolute or unqualified principle. Many legal systems, including Australia, provide for a departure from this principle in certain situations, including for drug trafficking offences. In other words, in exceptional cases it is permissible to raise a presumption of guilt if the prosecution could make out a prima facie case. But it is usually open for defendants to rebut such presumptions of law or fact, as was the position in Corby’s case.
Furthermore, any suggestion to equate a jury trial with a fair trial is as misleading as equating sun with light. History is a poor and often inconclusive guide to judge the fairness of a current legal system, especially when the present reflects a break from the past. Also, most legal systems have their not so commendable histories!
As far as the fear of Corby facing a firing squad is concerned, it can be said that the death penalty as a sentence is questionable on several moral, ethical, religious and legal grounds. Perhaps the death penalty could only be justified - if at all - if it serves a useful purpose within the justice dispension system, and is awarded though a fair and just process for a heinous crime known beforehand.
However, irrespective of these considerations, one should take a consistent stand towards the death penalty. For example, it would be hypocritical to rejoice or ignore death penalties for foreign terrorists but not for Australian drug traffickers. One should also keep in mind Indonesian prosecutors do not ask for, nor do judges award, life imprisonment and death more often for foreigners - including Australians - who are involved in drug trafficking. As a 2004 report of Amnesty International indicates, out of the 54 people that are currently believed to be under death sentence in Indonesia, 31 are Indonesians.
An unreasonable fuss is also made about the prison conditions in which Corby is detained and may still be held in the future. Public demands and government initiatives have been taken to ensure Corby serves her sentence in Australia. The prison conditions may be degrading and inhumane, but she has not been put in a disadvantaged position by the Indonesian Government, nor has she been moved to a prison that tolerates torture.
The author would like to thank Laode M. Syarif, an Indonesian PhD Candidate at the Sydney Law School, who helped him in locating the necessary Indonesian material.