Saturday, October 26, 2013

2 Indonesians escape death penalty - but puts 2 other still in risk, and has affected their right to a Fair Trial

It certainly is good news that these 2 Indonesians who were facing the mandatory death penalty on a 'drug trafficking' charge have been released...

These 2 together with two others were arrested by the Malaysian police in a parking lot on 17/1/2013. So there were 4 persons arrested and charged, and all possibly facing the death penalty.

From the news report in, which is in Bahasa Indonesia, it seems that  prosecution apparently withdrew the charges against these 2 persons - apparently on condition that they turn prosecution witness and testify against the other 2. According to the report, they already have given evidence in court..

I could not find out the nationality of the other 2 persons, but more likely than not these 2 are still facing the mandatory death penalty..

PROBLEM AND CONCERN - It is not uncommon for prosecution to offer 'deals', which could lesser charges or even complete withdrawal of charges to persons JOINTLY charged with other persons for a crime - sometimes on condition that they turn 'Prosecution Witness' against the others. Joint Trials are dangerous for accused in such cases when co-accused suddenly end up agreeing to prosecution deals in mid-trial, and worse turning to be prosecution witnesses. Will these 'witnesses' be credible witnesses, especially since these are people who will be willing to say anything to escape imprisonment - let alone the gallows. In such cases, all the questions raised, the doubts created, etc will just get 'removed' from the trial records when these accused persons have their charges withdraw or they plead to a lesser charge, and it will be prejudicial to the remaining accused persons.Note that lawyers of the accused person will usually not repeat the questions or raise doubts raised already by a lawyer of another accused person who already asked before him/her some questions, so a removal from records of questions and answers, and doubts created by a co-accused lawyer once the accused's charge is withdrawn or suddenly pleads guilty to a lesser charge will prejudice remaining accused. Even if it is not removed/considered by the court, the fact that a co-accused has had their charge withdrawn or had pleaded guilty to a lesser charge, and worse if appeared as prosecution witness, whatever points/doubts that has been raised by that accused's lawyers  loses weight.

To have the right to a fair trial, it is important that there be a fresh new trial of the remaining accused persons before a new Judge. 

We should call for a fresh new trial before a new Judge for the remaining accused persons still facing the mandatory death penalty if convicted.

Malaysia has been indicating that it wants to abolish the death penalty, and we hope that it is done soon.

Next, if the dropping of the charge against the 2 Indonesians was because of pressure from Indonesia, or the commuting of death penalty to imprisonment was because of pressure from a foreign government, is this not a great INJUSTICE to others? Would this not be a violation of the Constitutional guarantee of equality and equal treatment under the law?

We are happy for the 2 Indonesians whose charge was dropped, but we must be more concerned for the remaining 2 who faces the death penalty, and their right to a fair trial. 

Thursday, 24 October, 2013 | 11:00 WIB
Indonesians Freed from Death Penalty

TEMPO.CO, Jakarta - President Susilo Bambang Yudhoyo (SBY) expressed his appreciation towards the exemption of two Indonesians from death penalty in Malaysia. The two Indonesians are Heni Herawati and Indah Kumala Sari. 

Heni and Indah were exempted from death penalty after prosecutor of the Kuala Lumpur Court withdrew its charges of drug possession pressed against the two Indonesians.

"I thank the Indonesian Embassy in Kuala Lumpur, lawyers and other government elements for their endeavors and hard work," the President said via his Twitter account on Thursday, October 24.

The President claimed that up until today, the Indonesian government had succeeded in releasing 140 Indonesians from death penalty.

"I hope all Indonesians abroad comply with [local] laws and avoid committing crime," he said.

Heni, Indah and two other suspects were previously arrested by the Royal Malaysia Police on January 17, 2013, at a parking space of a hotel in Kuala Lumpur for drug drug possession. -, 24/10/2013, Indonesians Freed from Death Penalty

"...Sebelumnya dibertiakan bahwa Heni dan Indah terbebas dari hukuman mati di Malaysia, setelah jaksa penuntut umum di sidang di Mahkamah Tinggi pada 21 Oktober 2013 kemarin menarik dakwaan kepemilikan narkoba terhadap keduanya.

Keputusan JPU itu didasari surat pembelaan awal yang disampaikan oleh pengacara KBRI Kuala Lumpur. Selanjutnya, JPU meminta kedua WNI itu menjadi saksi utama.

Pada hari yang sama, Heni dan Indah memberikan kesaksian di depan Mahkamah. Hakim lalu memberikan kuasa penjagaan atas Heni dan Indah kepada KBRI Kuala Lumpur dan meminta pihak kedutaan memproses pemulangan keduanya ke Indonesia.

Saat ini Heni dan Indah berada di selter KBRI Kuala Lumpur sambil menunggu kelengkapan dokumen yang diperlukan untuk proses pemulangan ke Indonesia. Keduanya ditangkap oleh Polis Diraja Malaysia bersama dua tersangka lain pada 17 Januari 2013, di halaman parkir sebuah hotel berbintang di Kuala Lumpur dengan tuduhan terlibat tindak pidana narkotika...." -, 24/10/2013, Dua WNI Bebas dari Hukuman Mati, SBY: Alhamdulillah, Jangan Diulangi Lagi

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