Royal Pardon, Please
By Hamish MacDonaldApril 30, 2012
Lawyers for young Indonesian people smuggler, thought to be a minor, to ask for royal pardon as government announces a review.
Two weeks after we reported the case of Ali Jasmin, a young Indonesian boy found guilty of people smuggling, the federal government is yet to respond to the fresh evidence presented by The Project and The Global Mail which supports the claim that he could be a minor, born in 1996.
Pressure has been mounting: The Greens have called for a Senate inquiry. There have been unusually strident comments from Indonesian diplomats. And Legal Aid lawyers have formally asked Australian Attorney General Nicola Roxon to initiate a pardon for Ali Jasmin. For now he remains in Albany's maximum-security, adult prison.
As we reported on April 16, Ali Jasmin left his Indonesian island home of Flores in December 2009, to crew on a boat that was smuggling asylum-seekers to Australia. The boat, carrying 55 Afghans, struck trouble in Australian waters. Ali Jasmin was among the four crew members picked up on December 18 and ultimately charged with people-smuggling offences.
The District Court of Western Australia determined him to be an adult and found him guilty. He is now serving a five-year prison term.
In the boy's home village of Balauring, The Project sighted several documents — school registration papers, family registration documents and a birth certificate — all of which were consistent with claims by Ali Jasmin's family that he was born in 1996.
The documents show he would have been at most 14 when he was convicted and jailed as an adult — and only 16 years old today.
Further questioning has revealed that a legalised copy of the birth certificate had already been obtained — not only by Ali Jasmin's defence lawyers, but also by the Commonwealth DPP, the Australian Federal Police and the Department of Immigration. These authorities had the certificate up to four months before the court determined Ali Jasmin to be an adult — yet it was never tendered in evidence.
Determining the age of Indonesians accused of people smuggling when they claim to be minors has turned out to be controversial for the government. Indeed, the Human Rights and Equal Opportunity Commission is currently conducting an enquiry into the methodology used, until recently, to determine age.
In the case of Ali Jasmin, the AFP had been asked by the Commonwealth Director of Public Prosecutions to investigate the issue of the boy's age.
Asked if this investigation had in fact been undertaken, the AFP response to The Project was: "Yes, the AFP through its office in Jakarta, Indonesia, undertook enquiries to verify the authenticity of the document."
And the outcome of that investigation? The AFP says: "The result of these enquiries were that the birth certificate and extract documents appeared to be authentic, however the accuracy of the information contained in the document was uncertain given the time between the alleged date of birth and the date of the record."
Meanwhile it was revealed last week that the Indonesian National Police, in October 2010, had sent a letter to the AFP, confirming the birth certificate belonging to Ali Jasmin was authentic.
The existence of the letter from the Indonesian National Police emerged at hearings for the Human Rights Commission's public inquiry into accused people smugglers on Friday, April 20, 2012.
Acknowledgement of this letter by the AFP means this: two months before Ali Jasmin's age determination hearing in Western Australia, the AFP had received confirmation from Indonesian authorities that the birth certificate was indeed a legalised document.
Following this discovery, The Project sent additional questions to the Australian Federal Police about the apparent discrepancy — between the view of its Indonesian office (that the information on the birth certificate was "uncertain") and the view of the Indonesian National Police, (that Ali Jasmin's birth certificate was authentic).
On April 27 the AFP responded: "As Indonesia is a sovereign nation, the AFP has no legal right to undertake enquiries in that country. When age determination enquiries are sought, the AFP seeks the assistance of Indonesian authorities to undertake those enquiries on a police-to-police basis or via a formal request under the Mutual Assistance in Criminal Matters Act 1987."
The Commonwealth DPP says the certificate indicates the birth document had been registered in or after 2006 — which is 10 years after Ali Jasmin's alleged birth date, but three years before he was detained in Australia.
A spokesperson for the CDPP said, "The authenticity of the record was not in question, the accuracy of the information contained in the document was uncertain given the time between the alleged date of birth and the date of the record."
The AFP spokesperson did not say whether further clarification was sought about the accuracy of Ali Jasmin's birth certificate.
The impact of this chain of events was that Ali Jasmin's birth certificate, notorised by the Indonesian Police, was never presented before the courts.
Meanwhile the medical expert witness who testified in court about Ali Jasmin's age is no longer used in such cases. In the Western Australia District Court, Dr Vincent Low presented x-ray evidence suggesting Ali Jasmin was an adult at the time of his arrest. The Perth-based doctor's evidence in another similar case has since been dismissed as "flawed" by judges. Dr Low has told a court that he is not a qualified bone radiologist. His specialty is gastro-intestinal radiology. The Commonwealth Department of Public Prosecution has described Dr Low as the "principal witness" in these cases, but told The Project he is no longer used in these cases to present expert evidence.
New lawyers for Ali Jasmin, appointed by WA Legal Aid, have formally requested the Attorney General recommend that the Governor-General invoke the Royal Prerogative of Mercy and grant the boy a pardon.
The Commonwealth has granted only three pardons since 1990, none involving prison sentences. Evidence discovered by The Project in Indonesia, along with material filmed and reported in The Global Mail, has been requested by the lawyers for presentation to the Attorney General.
There has been no response so far from the Attorney General, Nicola Roxon.
On May 2, the Attorney General Nicola Roxon announced that there will be a review of the cases of 24 young Indonesians imprisoned in Australia, suspected of being minors.
Ali Jasmin’s is one of these cases. The Attorney General says the review will be conducted as quickly as possible.