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THE CASE OF KRISHNA KUMAR TOLARAM GANGTANI (popularly known as Anand Krishna)
FEATURES & CONSEQUENCES
Fabricated Charges which Appear to be Motivated by Religious Intolerance and to Curtail Freedom of Speech, Inadmissible Testimony, Irregular Detention, Health Problems, Judge Removed from Case after Found Fraternising with a Witness, Judge with Integrity (and previously considered a candidate for the Supreme Court) Relocated to Backwater.
Inter-faith activist, Anand Krishna, who has worked unrelentingly for a peaceful Indonesia and world, is accused of committing obscene acts with a person admitted to an education/charity institution, but it appears that the charge is motivated by the desire to limit his inter-faith activities and curtail his freedom of expression. Inexact and irregular evidence is provided against the defendant and he is acquitted. Contrary to the Indonesian Penal Procedural Code (KUHAP), an appeal is commenced in the Supreme Court against the acquittal, which is duly overturned, leaving Anand Krishna facing a two-and-a-half year prison sentence.
In April, 2009, former Indonesian Supreme Court Chief Justice Harifin A. Tumpa endorsed the Indonesian Judicial Code of Ethics and Guidelines for Judicial Behaviour (the ‘Code’), which is based on the Bangalore Principles of Judicial Conduct. However, in February, 2012, a panel of Supreme Court judges dropped eight key sections from the Code, namely the requirement of judges to: not make mistakes in their decisions, not disregard facts that could disadvantage a party, not favour a party, and not handle cases in which they have an interest. The sections dropped also required judges to maintain and enhance their knowledge, skills and personal qualities; to respect the rights of parties; to understand and perform their tasks in accordance with the law, so as to apply the law correctly; and to meet their administrative responsibilities.
There are serious concerns that the trial in the Supreme Court of Anand Krishna did not comply with the Bangalore Principles of Judicial Conduct and fair trial criteria, because the defendant was denied the right: to a fair and public hearing; to a competent, independent and impartial tribunal established by law; to a presumption of innocence and that guilt must be proved beyond reasonable doubt; to a trial without undue delay: and to not be discriminated against on the basis of religion or other opinion, or status. The case has the hallmarks of being conducted because of religious intolerance and in order to curtail freedom of expression in Indonesia.
In fact, it has many of the features of the case of Malaysian opposition leader Anwar Ibrahim, who was accused of sodomising his male aide, Saiful Bukhari Azlan. Anwar Ibrahim's defence team pointed out that Mr. Saiful visited Prime Minister Najib Razak several days before filing a criminal complaint against Anwar Ibrahim. Anwar Ibrahim spent six years in jail before his was acquitted in January, 2012. The judge, Mr. Zabidin, said in his verdict that there were no witnesses to the alleged act, and that the DNA evidence presented by the prosecution was flawed. The case appears to have been politically motivated and aimed at silencing and curtailing the activities of Anwar Ibrahim.
THE LAW IN INDONESIA ON SEXUAL HARASSMENT AND THE COMMISSION OF OBSCENE ACTS
There is a general provision in the Indonesian Criminal Code for crimes against decency (kesopanan). Although there is no specific use of the words “sexual harassment”, Article 281 of the Criminal Code can be used as the basis for filing a complaint against such an act by another party.
Article 281 reads:
“Imprisonment of a maximum period of two years and eight months or a maximum fine of Rp. 4,500 will be imposed on:
• whoever intentionally breaks the norm of decency in a public place; or
• whoever intentionally breaks the norm of decency in the presence of any other individual who is present without his or her own desire.”
The offence derives from the Dutch crime of 'openbare schennis der eerbaarheid', which dates from 1886. In English it approximates to: 'blatant offence to modesty' and is, therefore, open to much interpretation.
However, Anand Krishna was charged with violating Article 290, paragraph 1 and Article 294, paragraph 2 (2), in conjunction with Article 64, paragraph 1.
Article 290 paragraph 1 of the Criminal Code reads:
"Any person who commits obscene acts with someone whom he knows is unconscious or helpless, may be punished by a maximum of seven years imprisonment."
Article 294 paragraph 2 (2) of the Criminal Code reads:
"The executive, teacher, physician, official, overseer, or attendant at a prison, labour institution of the country, educational institution, orphanage, hospital, lunatic asylum or charity institution, who commits any obscene act with a person admitted thereto."
Punishment: maximum imprisonment of 7 years.
Article 64 paragraph 1 of the Criminal Code reads:
"If among more acts, even though each in itself forms a crime or misdemeanour, there is such a relationship that they must be considered one continued act, only one penal provision shall apply whereby, in case of difference, the most severe penal provision shall be imposed."
February 2010 - Anand Krishna is accused of committing obscene acts. However, the case is brought first to the National Commission of Women (on 12th February, 2010), rather than the police, and is accompanied by a media campaign to blacken Anand Krishna. The allegations are apparently made by a group of radicals who object to Anand Krishna's pluralistic views, his works (more than 150 books to date), and his various ongoing campaigns and projects to celebrate 'Unity in Diversity' (www.anandkrishna.org, www.anandashram.asia)
15th February 2010 - Anand Krishna is reported to the police. His sole accuser is a 19 year-old girl, Tara Pradipta Laksmi. In the media, however, the number of Anand Krishna's victims is alleged to be between 19 and 42.
25th February, 2010 - The sole accuser’s lawyer states online that, “The Sexual Harassment (Case) is only the door to a more serious problem, i.e, “Religious Blasphemy.” Three online-media, including TempoInteraktif.com quote the statement.
7th April, 2010 - For several weeks Anand Krishna is interrogated by the police, from morning until late evening, during the last 3 hours of which he is not allowed to go to the toilet. The police are aware that Anand Krishna suffers from diabetes, hypertension and other medical complications. Consequently, Anand Krishna collapses and is rushed to the police hospital, where for 3 days he is put on a heavy dose of pain killers and some sedatives. On being allowed to transfer to another hospital, he is diagnosed with bigeminy, which is a slightly abnormal heart rhythm that is usually of no serious concern in the absence of other cardiovascular disease. However, a little stress causes his heart beat to increase by a multiple of three.
August 2010 - The Prosecutor finally submits her dossier to the court. Hearings in case no. 1054/Pid.B/2010/PN.JKT.SEL, which are not open to the public, continue until April, 2011. Rather than being asked about the sexual harassment allegations, witnesses are questioned about Anand Krishna's books, thinking, writings and his other works. The judges, particularly the presiding judge, ask Anand Krishna about his use of incense, why he teaches meditation, why he talks and writes about reincarnation etc. The suggestion seems to be that Anand Krishna tries to effect the religious conversion of participants through meditation.
9th March, 2011 - Anand Krishna is detained prior to his and the defence witnesses giving of evidence and provision of an alibi. Anand Krishna goes on hunger strike for 49 days
16th March, 2011 - Anand Krishna collapses in court, where he is left without medical attention. When a doctor is called he insists Anand Krishna be taken to hospital immediately.
30th March, 2011 - Anand Krishna is forcibly sent to prison again by the prosecutor, where, in less than 48 hours, his health deteriorates and he is rushed to the hospital. His blood-sugar levels are just 64 and he suffers form hypoglychemie and a minor stroke, which affects his left leg.
Five witnesses and hundreds of photographs verify that presiding Chief Judge, Drs Hari Sasangka, is having an affair with one of the witnesses, namely Shinta Kencana Kheng, who alleges she was sexually abused by Anand Krishna.[Judge Hari Sasangka was later disciplined by the Supreme Court]
8th June, 2011 - After this irregular relationship is reported to the Supreme Court and the Judicial Commission, the entire panel of judges (namely: Drs. Hari Sasangka, SH. Mhum (Chief), Subiantoro, SH and Didik, SH) is replaced on the orders of the Supreme Court and the Head of the District Court. The new panel of judges, consisting of Sukoharjono, SH, H and Muh. Rasad, SH, MH, is presided over by Albertina Ho, who has a reputation of integrity. She hears the testimony of all the key witnesses: Tara Pradipta Laksmi, Shinta Kencana Kheng, Sumidah, Farah Diba Agustin, Dian Mayasari, Lini Tjeris, Maya Safira Muchtar, Phung Soe Swe Alias Chandra, Leon Filman, Demitrius Baruno and Dewi Djuniarti and M.D Abrory Djabbar.
During the indictment, the public prosecutor, Martha P. Berliana, makes mistakes and irregularities in prosecuting Anand Krishna, as follows:
She ignores the facts revealed in the closed courtroom sessions.
Highly irregularly, she changes the name, profession and court testimony of an expert witness in criminal law, Prof. Dr H Dwidja Priyanto SH MH SpN, Dean of Suryakancana University in Cianjur, to that of Prof. Wija, a psychiatrist, and his submission on hypnotherapy.
She omits the statement of the alleged victim, Tara Pradipta Laksmi, which states that the first time Anand Krishna committing an obscene act with her was on 21st March, 2009, in the town of Ciawi; despite the fact that Anand Krishna has solid evidence and more than 80 witnesses who can confirm he was in Jakarta on that day giving a lecture.
She was unable to provide exact dates or times of the alleged commission of obscene acts, mentioning only that they were approximately at the beginning of April, 2009, at the end of May, 2009, and in late June, 2009, etc. She only provides an exact date for the alleged obscene acts committed against Shinta Kencana Kheng (25th February, 2010), despite the fact that these alleged obscene acts were reported to the Jakarta police on 18th February, 2010. Oddly, Anand Krishna was not prosecuted for this alleged commission of obscene acts.
22nd November 2011 - Judge Albertina Ho acquits Anand Krishna of all charges and reinstates his civil rights. Shortly after acquitting Krishna and following her fearless handling of politically-charged cases involving tax manipulation by Gayus Tambunan and disgraced prosecutor Cirus Sinaga, Judge Ho (who was formerly thought to be a candidate for the position of Supreme Court judge) is summarily reassigned to a backwater community on Bangka Belitung island.
5th December 2011 - contrary to the public statement of the Attorney General, Basrief Arief, made on 18th July, 2011, before the People's Representative Council (DPR), that verdicts of innocence should not be appealed against except in cases of state corruption, the public prosecutor, Martha Berliana, and the chief provincial attorney of the District Office of South Jakarta commence an appeal (case no. 619 K/Pid/2012) to the Supreme Court, with the following irregularities:
* The written appeal filed with the Supreme Court contains 10 pages of “cut-and-paste” and erroneous legal citations dealing with copyright law, completely non-germane to the case.
* In filing the appeal the public prosecutor manipulates the court record of evidence, changing the identity of expert witness statements.
* Misleadingly the appeal quotes just part of Judge Albertina Ho’s verdict (page 317) (Appeal Memoir, Page 23, Point A1) and cites a case from West Java High Court (Case No. 20/Pid/2006/PT. Bdg, 21st April 2006, Pages 9 to 13 and Pages 91 and 92).
Under Articles 67 and 244 of Bill No 8/1981 of the Indonesian Penal Procedural Code (KUHAP), appeals cannot be brought to the Higher Court or the Supreme Court where the defendant has been cleared of all charges and declared innocent by a lower court. However, prosecutors are known to attempt such appeals on the basis of a Minister of Justice 1983 decree that declared acquittals by a lower court could be challenged in the Supreme Court for reasons of “condition, law, justice and correctness”, based on Supreme Court jurisprudence. However, a Ministerial Decree has less legal weight than formalised law such as the KUHAP and, according to People’s Representative Assembly Decree (TAP MPR) No. III/2000, Supreme Court jurisprudence is not to be included in The Source of Law & Hierarchy of Laws.
24th July, 2012 - a panel of Supreme Court judges (Dr.H.M. Zaharuddin Utama, SH.,MM. head judge), H. Achmad Yamanie, SH.,MH., and Dr. Sofyan Sitompul, SH.,MH.) overturns Adnan Krishna's acquittal.
In their poorly devised judgement the justices state that:
"In the year of 2009, the defendant molested [Tara Paradipta Laksmi] sexually in L'Ayurveda, Golden Ruko Fatmawati, by kissing her hand and arm up to her head, caressing her hair, kissing her cheek, forehead, nose, lips and touching her body, back, chest, breast, sucking her breast, putting his finger in her vagina and rubbing it repeatedly. The acts continued for two hours, although [Tara Paradipta Laksmi] was crying in fear and pain."
Oddly, while the alleged sexual acts are described in some detail, the date, time and precise location in the L'Ayurveda shop-house of the incident are not given, nor are the names of any witnesses to the acts.
The judgement states that the other people against whom the defendant committed obscene acts or who witnessed them were:
Sumidah Veronika alias Sum: whom it is stated was, from 10th to 14th October, 2009, required by the defendant to massage his feet, his body, penis and bottom, and that he touched her breast. The defendant has not been prosecuted separately for this. Tara Paradipta Laksmi is the only person in respect of whom a prosecution was commenced.
Dian Mayasari - wife of M.D. Abrory Djabbar: whom, it is stated, was invited to attend on the defendant by Liny Tjeris, when he hugged Dian Mayasari and grabbed her buttocks. The defendant has not been prosecuted separately for this. Tara Paradipta Laksmi is the only person in respect of whom a prosecution was commenced.
Shinta Kencana Kheng: whom it is stated, was asked to massage the defendant in the presence of Maya Safira Muchtar, Liny Tjeris and Dewi Djuniarti. She apparently saw the defendant touch the breasts of Maya Safira Muchtar, the body of Liny Tjeris, both of whom he kissed, before he touched Shinta Kencana Kheng's breasts, who was also required to lick him. Shinta Kencana Kheng also claims Maya Safira Muchtar met the defendant wearing short pants, which she took off and had intercourse with the defendant once she was naked. Later Shinta Kencana Kheng masturbated the defendant. It is also stated that in 2006, Shinta Kencana Kheng witnessed the defendant having intercourse with Maya Safira Muchtar. Shinta Kencana Kheng's testimony was compromised by her association with Chief Judge, Drs Hari Sasangka, who was removed from the case and disciplined, but this was not mentioned in the judgement. The defendant has not been prosecuted separately for this. Tara Paradipta Laksmi is the only person in respect of whom a prosecution was commenced.
Farah Diba: whom, it is stated, massaged the defendant's feet while, simultaneously, Maya Safira Muchtar massaged his head and Dewi Djuniarti his 'middle'. Both Maya Safira Muchtar and Dewi Djuniarti kissed the defendant's lips and he then tried to kiss Farah Diba, but she resisted. The defendant has not been prosecuted separately for this. Tara Paradipta Laksmi is the only person in respect of whom a prosecution was commenced.
Phung Soe Swe alias Chandra: the husband of Sumidah (Sumidah was reprimanded in the second District Court trial for prompting her husband when he was giving evidence).
Leon Filman: whom, it is stated, witnessed the defendant touching the vagina of Liny Tjeris.
Demitrius Baruno: whom, it is stated, witnessed the defendant kissing the lips of Maya Safira Muchtar, as he was driving the two of them from Bandung to Jakarta.
M.D. Abrory Djabbar & Dian Mayasari (husband and wife): whom, it is stated, witnessed Tara Paradipta Laksmi and 20 of her friends kissing the defendant's feet and the defendant kissing Tara Paradipta Laksmi's cheek in 2004. M.D. Abrory Djabbar threatened to kill Anand Krishna in court without eliciting any comment from head judge, Drs. Hari Sasangka, SH. Mhum. in the first District Court trial; but later withdrew the threat.
Maya Muchtar, Dewi Juniarti and Liny Tjeris are alleged to have witnessed many of the acts mentioned above; but, oddly, the prosecution did not call them as witnesses in the District Court trial. They, nevertheless, attended of their own accord and refuted the allegation that they witnessed the alleged obscene acts; but the Supreme Court dismissed these denials as 'illogical'.
In its verdict the panel claims the South Jakarta District Court Panel:
I. ignored/disregarded the clear facts of law (?),
II. disregarded all lawful evidence proving that the defendant had committed the crime,
III. the change of the panel of judges was irregular,
IV. the trial was protracted and the mental condition of the sole accuser was not taken into consideration,
V. the verdict was delivered late to the Supreme Court,
VI. the letter of prosecution, with analysis and details of the defendant's guilt, was not read out on 26th October, 2011,
VII. the method of examination in the case violated the procedural rules.
A process that normally takes years, takes only a few months and, within a matter of days, the verdict is passed to the District Court for execution, so that Anand Krishna can be imprisoned for 2.5 years.
The Supreme Court's verdict is viewed as not only violating Bill No 8/1981 of the Criminal Procedural Code (KUHAP), but also Bill No 39/1999 on Human Rights - as a result of Indonesian Ratification of International Covenant on Civil and Political Rights (ICCPR) - and Article 28D (1) of the Indonesian Constitution of 1945, which provides that every citizen has a right to equality, transparency, legal certainty and fairness before the law.
October, 2012 - Anand Krishna, now in Bali, refuses to comply with the Supreme Court's verdict.
November, 2012 - Anand Krishna's lawyers consider that the Supreme Court's Verdict doesn't meet the requirements of a punitive written judgement, as stipulated in Article 197 Paragraph (1) of Indonesian Criminal Procedures Code. According to Article 197 Point (2), failure to meet the provision in Paragraph (1) point a, b, c, d, e, f, h, j, k and l of this article, renders the judgement void in law. A request has, therefore, been submitted to South Jakarta District Court for the Supreme Court's verdict against Anand Krishna to be declared non-executable.
Judges Compromised - In addition to Chief District Court Judge Drs. Hari Sasangka (see above), two members of the panel of Supreme Court judges who overturned Adnan Krishna's acquittal have been publicly compromised. On Wednesday, 14th November, H. Achmad Yamanie became the first Indonesian Supreme Court judge to resign from his position. He cited health reasons; but deputy chief of the Judicial Commission, Imam Anshori S., says his resignation was influenced by his alleged involvement in the forgery of a Supreme Court ruling on drug lord Hengky Gunawan, whose sentence was commuted from death to 15 years imprisonment, but which, quite irregularly, court documents showed to be 12 years. Furthermore, since 6th November, the Corruption Eradication Commission has been looking into allegations that two Supreme Court justices - Zaharudin Utama and Mansyur Zaharudin Kertayasa - accepted bribes totalling Rp.3.74 billion to declare a previous Supreme Court decision, sentencing Muhammad Misbakhun of the Prosperous Justice Party to one year in prison for falsifying documents when applying for a letter of credit in favour of a company he partly owns - PT Prima International Selalang - and worth US$22.5 million from Bank Century (now Bank Mutiara).
30th December, 2012 - the National Committee on Human Rights (Komnas HAM) sends a letter to the head of the Indonesian Supreme Court, the Attorney General's Office and Police Headquarters requesting that any plans to arrest Anand Krishna be delayed indefinitely. The requested delay is to allow Anand Krishna the opportunity to demonstrate to the court the many legal flaws in the Supreme Court decision that overruled his complete exoneration by a lower court. The letter spotlights the many irregularities and legal flaws during the course of the trial and the resulting legal decisions, indicating violations of the law and human rights.
16th February, 2013 - Anand Krishna is arrested. In what resembles an anti-terrorist operation, the District Attorney for South Jakarta, assisted by some 60 plain-clothes police and their henchmen, storm into his Ashram at a time when daily chores are being undertaken and numbers of personnel are low. While more police officers wait outside with rifles at the ready, those inside push, shove and manhandle the women in order to arrest Anand Krishna in contravention of the law and fly him to Cipinang Penitentiary in East Jakarta. Subsequently, paid canvassers of the South Jakarta District Attorney go round from house to house locally, fomenting the accusation that Anand Krishna is a heretic, while also trying to destroy his reputation as a man who simply advocates religious tolerance, peace and harmony. This action confirms that the issue is not about the false charges of sexual harassment, but that there is an underlying political and religious agenda.
April, 2013 - an illegal arrest complaint is filed with the State Administrative Courts in connection with Anand Krishna's apprehension in Bali and detention in Jakarta.
25th August, 2014 - Anand Krishna is granted parole and released from jail.
FAIR TRIAL CRITERIA NOT COMPLIED WITH
1. The defendant was denied the right to a fair hearing:
Contrary to Bill No.8/1981, the Supreme Court tried the defendant in his absence and in the absence of his lawyers and the public prosecutor. Further, the judges only considered the public prosecutor's indictment and disregarded the facts uncovered and testimony given during the 15-month trial.
2. The defendant was denied the right to a public hearing:
Under Indonesian law sexual harassment cases must be heard in camera to protect the alleged victims. However, given the nature of and doubts about this case, all documents and recorded hearings should be made available for public examination of the case.
3. The defendant was denied the right to a competent, independent and impartial tribunal established by law:
The public prosecutor repeatedly made errors in arranging the indictment, the letter of prosecution and the appeal to the Supreme Court. The Supreme Court judges gave consideration to inadmissible case documents supplied by the prosecutor for the appeal.
Further, the illicit affair between the first Chief Judge and the female witness who testified that she was sexually molested by the defendant, raises the question of why the Chief Judge should be compromising his impartiality.
4. The defendant was denied the right to a presumption of innocence and that guilt must be proved beyond reasonable doubt:
No exact times were given for the alleged sexual harassment. Medical forensics requested by the National Police (issued by a state hospital one year after the alleged sexual harassment), indicated that there was that no sign of sexual abuse or penetration.
The testimonies of all the witnesses and that of the sole plaintiff, were inconsistent.
The illicit affair between the first Chief Judge and the female witness who testified that she was sexually molested by the defendant, raises the question of her motive.
5. The defendant was denied the right to a trial without undue delay:
Six months elapsed between when Anand Krishna was charged and the actual trial.
The public prosecutor, Martha Berliana Tobing, frequently came late to the court and even postponed hearings at the last minute.
6. The defendant was denied the right not to be discriminated against on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status:
The way the trial was conducted suggests an ulterior objective, namely to limit the inter-faith activities of the defendant.
Anand Krishna was jailed, despite the irregularities in his case and the growing list of discredited judges. Does this case of the commission of obscene acts against a person admitted to an education/charity institution represent a crossroads for Indonesia? It certainly offers valuable insights into judge integrity, impartiality and competence; the appointment and posting of judges; the independence of the judiciary; religious tolerance; freedom of expression; the openness of legal proceedings; obscenity laws; and much more in Indonesia today. Indonesia was oppressed under the tyranny of Dutch colonial rule, Japanese occupation and the rule of Soeharto - a quisling of the US. Will the present condoning of religious intolerance, of suppression of freedom of speech and fair trials, herald in the next tyranny; that of religious fundamentalism? Or, in predominantly Muslim Indonesia, will this exhortation prevail: “O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor...” (Quran 4:135)
Find out more about this pivotal case by watching this video (in Indonesian and then English) of Anand Krishna just prior to being whisked off to jail in Jakarta on 16th February, 2013.