I was recently in Indonesia to hear the verdict in the criminal trial of Richard Ness, an American gold miner, accused of knowingly polluting Buyat Bay, its fringing coral reefs and local villagers, with mercury and arsenic.
On the morning of the verdict, it was rumoured there would be 10,000 demonstrators, that effigies of Ness and the chief judge would be burnt, that an army platoon was on stand-by, and that the court house could be bombed.
The panel of five judges found Richard Ness not guilty on all charges. To quote from his son Eric’s blog:
“The final ruling is unambiguous because it is based primarily on substance and technical facts. When I sat in the court and listened to the ruling I noted that each of the prosecution’s evidence was rejected soundly and decisively. The Judges had applied the most objective scientific knowledge and techniques to develop their argument for each rejection of prosecution’s claim.
… It must be stated that the court’s decision was not just a simple victory where my Dad and Newmont were acquitted of any wrongdoing but the judgment had a list of more than 50 points outlining why these allegations were not only unfounded but also it categorically stated that no environmental crime was committed in Buyat by Newmont. The decision was a slam dunk in all respects yet some are still trying to spin it as a victory by technicality.”
After the reading of the verdict Richard Ness refused to be ushered out of the court room by the back door. Instead, flanked by his two sons, he descended from the court house into a throng of angry demonstrators and proudly walked up the busy boulevard.
Incredibly the Ministry of Environment is now appealling the decision.
A problem for the Indonesian government is that environmental activists, working with their friends in the local and international media, ran a convincing campaign. There had already been a successful trial by media with Ness portrayed as guilty.
Newmont has just issued a press release:
“JAKARTA, Indonesia, May 7, 2007 – An Indonesian court ruled on 24 April 2007 that PT Newmont Minahasa Raya (PTNMR), a subsidiary of Newmont Mining Corporation, and its President Director Richard Ness are acquitted of all criminal charges of pollution and regulatory violations.
Ruling on evidence presented during the 21-month trial, one of the longest criminal proceedings in Indonesian history, the court held that Buyat Bay is not polluted. It further found, as PTNMR contended, that the company was in compliance with all regulations and permits during its eight years of operations from 1996 to 2004. However, the prosecutions filed an appeal in Manado Court today (7 May 2007).
Luhut MP. Pangaribuan, PTNMR legal team: “Considering that the Defendants have been acquitted of all Public Prosecutors’ indictments, then according to Article 67 and Article 244 from the Law on Criminal Procedure, an appeal is not permissible if there is a complete acquittal. Therefore, I hope that this appeal will be immediately rejected as not in accordance with the law”.
The exact wordings in the Law on Criminal Procedure are as follows:
Article 67: A defendant or public prosecutor shall have the right to appeal against a decision of a court of first instance except against a decision of acquittal, a dismissal of all charges related to a matter of inappropriate application of law and a court decision under express proceeding.
Article 244: The defendant or the public prosecutor may file a request for an examination of an appeal to the Supreme Court against a decision on a criminal case rendered at the final instance by a court other than the Supreme Court, except with regard to an acquittal.
“It seems that the Government wants to take us back to court one more time, even though the court ruled that the bay is not polluted and the case should have not have been in criminal court to start with. To my understanding, to appeal on a full acquittal is not only against the law; it sends the signal that the Government does not believe their own courts decision. To say I am disappointed with the Government’s decision is an understatement”, said Richard Ness.
The other reason that the appeal is not necessary is that the Government of Indonesia and PTNMR have established the independent scientific panel under the Goodwill Agreement that will monitor and report on Buyat Bay for almost another decade. Newmont Vice President of Asia Operations, Robert Gallagher, “We are confident that it will confirm that there is no pollution in Buyat Bay. If anyone has any residual concern in regard to the condition of Buyat Bay, let that concern be addressed by pure science”.
More information about the case can be found at www.BuyatBayFacts.com along with a chronology of events at http://www.buyatbayfacts.com/what_happened/timeline.aspx.
End of press release from Newmont.
I am writing a book on the saga.
Jennifer Marohasy BSc PhD is a critical thinker with expertise in the scientific method.
The news reports are that the case “could not be proven” – the prosecution will have to make known within 2 weeks their legal reasons for the appeal to proceed.
These proceedings must deter foreign investment which cant be good for the economy. Whilst the JSX is booming international investors might be alarmed at the growing the risks and may reduce their exposure. You have to wonder, who is to gain from this instability?
Meantime in Jakarta there has been a reshuffle of the cabinet to assuage minority parties, with 2009 looming as an election year uncertainty and volatility must increase.