GOI QUESTIONS USE OF HUMAN RIGHTS REPORT IN U.S.

UNCLAS SECTION 01 OF 02 JAKARTA 000824 SIPDIS DEPT FOR EAP, EAP/MTS, EAP/MLS, EAP/RSP, L, L/DL FOR DICKERSON E.O. 12958: N/A TAGS: PREL PGOV KLIG ID SUBJECT: GOI QUESTIONS USE OF HUMAN RIGHTS REPORT IN U.S. LEGAL PROCEEDING REF: A. JAKARTA 730 ¶B. JAKARTA 692 ¶1. (U) This message is Sensitive But Unclassified -- Please handle accordingly. ¶2. (U) This is an Action Request -- Please see paras 7-8. ¶3. (SBU) SUMMARY: Mission has received a diplomatic note formally complaining about the use of the 2003 U.S. Department of State Country Report on Human Rights Practices in a U.S. court proceeding (the court in question has apparently allowed provisions of the report related to corruption in the Indonesian legal system to be cited as evidence). The GOI believes that the use of the report in court is inappropriate and it asks that the USG issue a "statement of interest" regarding the matter. Mission requests the Department's guidance in responding to the diplomatic note (the text of which is attached below). END SUMMARY. BACKGROUND -- A GOI STATEMENT OF THE FACTS ¶4. (SBU) The GOI has sent Mission a diplomatic note dated April 30, 2009, asserting the following information: Amcit businessman Michael S. Fox had previously sued Bank Mandiri--a state owned enterprise--in Indonesia over non-payment of a letter of credit during the 1998 Asian financial crisis. Bank Mandiri said it did not pay the letter, valued at $5.3 million, due to discrepancies between the machinery that Fox's company delivered and that which had been ordered. The Indonesian court ruled in favor of Bank Mandiri. The plaintiff filed an appeal to the Indonesian Supreme Court. The plaintiff could have (but did not) filed a complaint with the Indonesian Judicial Commission, which is responsible for monitoring the activities of the courts and ensuring an independent judiciary. ¶5. (SBU) The GOI narrative continues: Fox then brought suit in a U.S. Bankruptcy Court. He alleged that he could not receive a favorable outcome in Indonesian courts because of systemic corruption in the country's legal system. A U.S. court is said to have accepted the case in part because the 2003 U.S. Department of State Country Report on Human Rights Practices substantiated the plaintiff's claims regarding the Indonesian legal system. The case is currently pending. RAISING CONCERNS; SEEKING USG HELP ¶6. (SBU) The Indonesian government's dipnote questions the use of the Human Rights Report as evidence in the U.S. legal proceeding. Per the dipnote, the GOI is concerned that use of the Human Rights Report sets a negative precedent. The GOI urges that the USG issue a "statement of interest" regarding the matter. ACTION REQUEST ¶7. (SBU) Mission requests that the Department provide guidance regarding the diplomatic note contained below. On the policy side, we note that the Indonesian government seems to be genuinely upset over this matter to the extent that its note asserts that bilateral relations could somehow be "endangered" if the USG does not provide assistance. ¶8. (SBU) We note that while some American companies have had difficulties in Indonesian courts, the Indonesian Supreme Court has recently made some positive judgments in favor of U.S. companies operating in Indonesia. Notable cases include the TIME magazine case (ref B) and the Newmont Buyat Bay case (ref A). Mission is sending scanned copies of all documents it received from the GOI re this case to EAP/MTS. (Note: We understand that U.S. courts have also cited the Human Rights Report in regard to asylum cases on multiple occasions. This is the first time we have heard of such a citation in a commercial dispute, however.) END ACTION REQUEST. TEXT OF DIPNOTE ¶9. (U) GOI Diplomatic note regarding Fox v. Bank Mandiri: Begin Text: No. D.00381/VY2009/58 JAKARTA 00000824 002 OF 002 The Department of Foreign Affairs presents is compliments to the Embassy of the United States of America and has the honor to convey (the following) on the ongoing case of Fox v. Bank Mandiri (a brief summary of the case is herewith attached) as follows: Michael S. Fox, as Trustee and Successor-in interest of Perry ¶H. Koplik & Sons, who had exhausted all legal avenues in Indonesia and finally lost the case, filed lawsuit in the United State in order to get favourable judgment. As a basis of its argument, Fox cites the United States Department of State Country Report on Human Rights Practices 2003. The Government of Indonesia is deeply concerned regarding the approach taken by the US Court that considered the Report as an admissible document and decided to adjudicate the case largely on the basis of views expressed in the said document. The Court came to a conclusion that the Indonesian judicial system &had been shown to have systemic corruption.8 In our view, this creates dangerous precedents both in the United States as well as in Indonesia because any persons can just simply cite any publicly available documents in order to quash a decision by the highest court in either jurisdiction that is considered unfavorable to a particular disputing party. Therefore within this context, the Department impress upon the Government of the United States to consider issuing a statement of interest on this matter for the purpose of serving the interest of the excellent bilateral relations between Indonesia and the United States, which could be endangered by such an approach. The Department of Foreign Affairs of the Republic of Indonesia avails itself of this opportunity to renew to the Embassy of the United States of America the assurance of its highest consideration. Jakarta, 30 April 2009 End Text. HUME