The World Today - Friday, 29 April , 2005 12:34:00 Reporter: Eleanor Hall ELEANOR HALL: Joining us now with an opposing view is the Director of the University of Melbourne's Asian Law Centre, Professor Tim Lindsay, a specialist in Indonesia law and society, who teaches both here in Australia and in Indonesia.
Dr Lindsay is on the phone from Singapore.
Dr Lindsay, what do you make of the concerns that have been raised in Australia recently about the Indonesian justice system?
TIM LINDSAY: Well, the Indonesian justice system is part of the European or continental group of legal systems. These are actually the most common legal system in the world.
The British common law system that exists in Australia is a minority of systems in the world. The Indonesian system is very close to the Dutch and the French models. It is very different, but that doesn't necessarily mean it's bad.
Nobody would criticise the French, German, Italian systems because they are different. The question is not systemic difference, but how it is actually implemented in practice.
And in reality these systems, whilst they have different procedures and different processes, the outcomes are not radically different. And of course our civil law systems are quite capable of delivering very good outcomes for litigation with a criminal or civil in some respects, you can argue that they're better.
Many people criticise the jury system in common law countries, including senior lawyers, and the civil law system doesn't have one.
I'm not expressing a view for or against, but you simply cannot cast aside the major legal system in the world just because it's different to the British common law model.
ELEANOR HALL: Is it the case that the Indonesian legal system is based on the presumption of guilt?
TIM LINDSAY: No, that is completely false. As a matter of fact it is completely the opposite. The system in Indonesia is the same as the system in Australia, and our Commonwealth system. Article 66 of the Criminal Procedure Code specifically states that the burden of proof to prove guilt in a criminal case lies with the prosecution.
In other words, that unless the prosecution can prove guilt, the person is innocent. So the common furphy that is being circulated in Australia in the media at the moment that people in the Indonesian system are presumed guilty until proven innocent is totally false.
ELEANOR HALL: Where does this idea come from?
TIM LINDSAY: Well, it used to be a view held about civil law systems… initially under Napoleon there was a certain point an assumption along those lines, but it's been a long time since that assumption applied in most civil law countries, and a long time, certainly, since it applied in Indonesia.
The Code of Criminal Procedure is quite clear. The prosecution bears the burden of proof to prove guilt. It is a common furphy about civil law systems that doesn't apply in the modern era.
ELEANOR HALL: So in your view has Schapelle Corby, for example, had a fair trial?
TIM LINDSAY: The Indonesian system does have significant problems of corruption and it's openly acknowledged in Indonesia. It does have institutional weaknesses and incompetence in the system, because it's emerging from a dictatorship that deliberately ran down the court system.
But that does not mean that all trials will necessarily be influenced by corruption, or that all judges and prosecutors are incompetent. Now, you have to look at each case on its merits.
The Bali bombers cases, for example, were run impeccably. There's been no serious criticism of the way those cases were run, in the same court in Bali as the court in which Schapelle Corby's trial has been conducted.
Now, to date her trial has complied pretty closely with the normal sort of procedures. The problem that Schapelle Corby faces, whether guilty or innocent, is that her defence team has put virtually no serious evidence before the court that would tend to suggest, or it would tend to support any hypothesis that would support her innocence.
ELEANOR HALL: How damaging do you think it's been, or has it been at all damaging, to relations between Australia and Indonesia that there has been such criticism of the Indonesian justice system in the media, and as you say, if it's as false as you say?
TIM LINDSAY: Well, mature countries with a strong bilateral relationship can stand a bit of upset over issues such as this. And I really don't think either the Schapelle Corby case or the Bali Nine is going to pull down what has become a particularly strong relationship following Australian support for the victims of the Aceh tsunami and so forth.
But the problem, I think, is, and you can understand that this would cause some problems in Indonesia, although not as major as people suggest, is that much of the criticism's simply inaccurate.
What's happened in Schapelle Corby's trial is standard procedure. Drugs cases are very common in Bali, it's one of the major centres for narcotics cases in Indonesia – Jakarta, and Surabaya are the others. The young judges and prosecutors are sent to Bali to cut their teeth on narcotics and prostitution cases, much of this because it's a major tourist centre.
This case is not an unusual case. It's a standard case. Her defence team has been weak, it has not put a good case before the court. It's really nothing controversial.
ELEANOR HALL: Dr Tim Lindsay we'll have to leave it there, but thanks very much for joining us.
TIM LINDSAY: It's a pleasure.
ELEANOR HALL: Dr Tim Lindasy from Melbourne's Asian Law Centre, speaking to us on the phone from Singapore.
