Release: Rick Ness and PTNMR say indictment legally flawed
Must be declared null and void as a matter of law
Saturday, August 20 2005 - 12:57 AM WIB
The attorneys spoke after a hearing in Manado District Court at which each of Rick Ness and PTNMR submitted written exceptions (formal objections) to the indictment because it does not meet legal requirements, including the requirement to be accurate, precise, and complete. The ability to challenge the indictment on these grounds is a right granted to accused persons under the Indonesian criminal procedure law.
?The criminal code gives a suspect a right to request the police to interview his witnesses and to include their testimony in the case file submitted by the police to the prosecutor,? said Ness attorney Palmer Situmorang.
?Despite Rick Ness?s requests, these witnesses were not questioned. Had all evidence been collected and submitted to the prosecutor for evaluation, the evidence in the case file would not have supported the allegations in the indictment. There would be no indictment.?
Palmer said Rick Ness?s objection to the indictment is also based on the fact that there is no provision in Indonesian law that makes a President Director automatically responsible for corporate acts and therefore the indictment against Rick Ness has no basis in law.
?If the indictment against Rick Ness is allowed to stand, every Indonesian President Director should be alarmed,? Palmer said
Separately, Luhut Pangaribuan, attorney for PTNMR, said ?Our environmental law is based on the principle that disputes be resolved by administrative processes as a first priority. Criminal proceedings are a last resort to resolve an environmental dispute. In this case criminal proceedings were pursued first and foremost, contrary to the principles of the environment law. What is the basis for debating routine regulatory matters -- for example, the permitting issues mentioned in the indictment -- in a criminal court??
Pangaribuan also noted, ?The Government issued PTNMR its Contract of Work, and in this contract it granted the company the right to receive notice of disputes and provided a mechanism for resolution, by mediation or arbitration. By issuing the indictment the Government has not respected these rights.?
?These rights are important to PTNMR, and all investors, because they provide certainty for their investments in Indonesia.?
PT NEWMONT MINAHASA RAYA
Commenting on the indictment, Pangaribuan said it:
?contains allegations which rely on principles of law that simply either do not exist or are wrong applications of the law
?makes inconsistent allegations ? for example, it alleges PTNMR does not have a tailings disposal permit but also seeks to rely on the permit by alleging PTNMR failed to comply with specific terms set out in the permit
"In the face of overwhelming evidence from the Indonesian scientific community, from respected international organizations, and even from the government itself that the water is fine and the fish are safe to eat, we fail to understand why we have been indicted for pollution,? said Newmont Vice President of Indonesian Operations, Robert Gallagher.(end of release)