28 October 2010

Schapelle Corby Still Doing Time...

It has been a long time since I posted something on the plight of Ms. Corby. It is not that I do not care, but rather there is a process and a course that matters like hers take. I really did not see the point in writing a post as there are more than enough people enlisted into the cause of keeping her name front and centre in newspapers and magazines around Australia.

Yet, a recent comment to an earlier Corby-related post that suggested that I was "toxic" for commenting on her case has inspired me to write a post. So, Anonymous, whoever you are, thank you! Hopefully, this post ruffles a few feathers and sees me called all manner of things. I must say to Anonymous...toxic is a little lame.

It would be hard to find an Australian who was not at least aware of the name Corby. Whether they care about that name is a different issue. Recent surveys would suggest that people reckon she has been punished enough. Then there are a sizable chunk of the population who really do not care one way or the other. Such is life!

The case is in the clemency appeal phase. This means that all ordinary avenues of legal recourse have been exhausted. What is left is an appeal to the president. The president has the authority to grant the clemency appeal or deny it. The president is on the record, consistently, stating that he will not view clemency appeals from drug convicts favourably.

The Corby clemency appeal is premised on humanitarian grounds. To all you lay people out there; she's crazy. In fact, there is little dispute that Corby has suffered mentally while incarcerated. In fact, there is little dispute that she is suffering from depression. If you are to believe the eminent shrink Dr. Jonathon Philips then she is suffering psychotic depression and it is only a matter of time before she successfully pulls the plug on her existence in Kerobokan. In contrast, if you belief the somewhat less recognised doctors treating her on a daily basis, then Corby suffers from treatable depression and she will live. The fact that she is alive is testament to the fact that her mental illness is treatable.

The Indonesian Supreme Court has recommended a significant sentence reduction to the president. It has been suggested that this reduction might even be as large as time served. This would mean if the president was to agree then Corby would be out of Kerobokan before the ink dried on the paperwork. It must be noted that the clemency appeal is not for a pardon. Corby will remain a convicted drug smuggler. The reality, despite those arguing to the contrary, is that the Indonesian way on pardons is that the convicted person needs to admit guilt and show some remorse.

Corby has steadfastly maintained her innocence, and the clemency appeal is sensible in avoiding any request for a pardon. It is important that people understand this critical difference if they are to get their collective heads around what might happen next.

Generally, a Supreme Court recommendation would be confirmed as a matter of course. But, this is no ordinary case. The importance of this case is that the presidential team responsible for assessing the clemency appeal have demanded a report from the Head of Kerobokan. This report was less than flattering. It suggested to all intents and purposes that Corby was not a model prisoner, her family was bothersome, and she was purposefully exaggerating the seriousness of her illness.

This sort of balances out the favourable views of the Supreme Court. Nevertheless, the plot thickens because the Indonesian Ministry of Foreign Affairs, and the Minister, Marty Natalegawa, have allegedly weighed in with a suggestion that a favourable clemency appeal decision would be beneficial to the overall Indonesian-Australian bilateral relationship. A more accurate description would be the Ministry drafted a report that would argue that an early release would be viewed favourably in Australia by ordinary Australians. The report would have been pragmatic to the n-th degree.

The likely outcome is that Corby will have her sentence reduced. It will be reduced to a point where she would have already served 2/3 of her sentence. In the Indonesian justice system, where a person has served 2/3 of their sentence they become eligible for parole / release. In the event that Corby's sentence is reduced to the 2/3 limit she might be released on the grounds that she be placed in an Indonesian psychiatric facility for a period of six months and then released / deported back to Australia.

Then again, the president, SBY, could just say "bugger that for a joke! The girl tried to smuggle 4.2kgs of wacky weed into Indonesia. Nah, she can do her time!"

The safe ground for the president is somewhere in between these two positions.

I hope she is released. I hope she gets back to Australia real soon. And, I hope that she takes the time to step out of the public eye and take the time she needs to recover from her ordeal as best she can. Life will never be the same for Corby. She cannot get the years in Kerobokan back. The smart choice would be not to cultivate the celebrity. Maybe she should look to David Hicks as an example. Get on with your life, and then at some point in the future put pen to paper and share your thoughts with those that want to know.

I wonder how many people I have annoyed with this post?

Image from here.


Simba said...

Hi Rob,

Just checked out the following link:

Nothing in the Indonesian Law On Pardon about the need for a convict to admit guilt before a pardon can be granted. I know the Law On Pardon is currently undergoing changes, but Law 22 of 2002 has been the law, since 2002.

As Schapelle is seeking clemency on humanitarian grounds, so she can survive, forcing a false confession out of her, when it is not a legal requirement, seems highly inappropriate.

Schapelle has steadfastly maintained her innocence, and quite rightly so, because she is innocent, despite having been judged guilty in the Denpasar District Court, by a Judge who always judges his defendants guilty, regardless of whether they actually are or not.

The family and Schapelle's supporters are well aware that her conviction will stand, even if clemency is granted. We don't care. We just want her home so she can begin the healing process, a process that will never happen all the while she remains in Kerobokan Prison. Regrettably, she is never likely to fully recover from her serious mental illness. The tragedy that has befallen her, will be with her, and her family, for life.

Rob Baiton said...

@ Simba...

Apologies on the delay in responding. Sort of kept forgetting.

Yep, I have read the law. In fact, I have a translation of it that I was asked to complete for a client.

I agree, there is nothing in the law that states explicitly that Ms. Corby would have to confess her guilt. Then again, she is not really asking for a pardon. She is asking for some clemency on humanitarian grounds, isn't she.

In any event, the law is a set of processes that are to be followed. Yet, it is worth noting that the law does not prohibit presidential discretion in determining a clemency appeal. Therefore, the president, if he so desires, could, for example, decide that prior to any granting of a clemency appeal that the convicted person must confess to the crime and show some remorse.

Now, the original post and most of what I have said elsewhere focuses on the "practice" that has been adopted in Indonesia with respect to pardons and clemency.

Nevertheless, what I find most interesting is that the position that many supporters have adopted is that Indonesia has been a barbarian state who has victimised Ms. Corby at ever turn and who have consciously ignored their own legal provisions to arrest her, prosecute her, and ultimately convict her.

Yet, there is a belief that all of sudden when it comes to the clemency appeal that they are going to follow the law in a "Black Letter" sense.

Now, as I said, I hope she is released. She has done more than enough time for the crime that she was convicted of committing.

Once again, there is quite often a difference between the way the law is written and how it is interpreted in the court system and by the president where the president is granted a degree of discretion in determining clemency appeals. The difference is one that at times is the basis of complaints in the Australian legal environment. This is particularly so when the specter of judicial activism is discussed.

But, thanks for dropping by. Good luck with the appeal.

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