Laos: The Danes' Case Wash Up

2002

Kathryn Sweet

Kay and Kerry Danes received a presidential pardon in November 2001 and returned to Australia, after spending 10 months in Phone Tong prison and one month in the care of the Australian Ambassador. The Danes case, with all its unexpected twists and turns and the never-to-be-known full facts, should serve as a sobering reminder for foreigners living in the Lao PDR of the fragility of their position. In a country where rule of law is a goal rather than a reality, and foreign residents are officially designated khek tang phathet, (foreign guests) expatriate life in Laos is impermanent. And it can fast turn grim when the invitation is unexpectedly withdrawn.

Kay and Kerry Danes arrived in Vientiane in 1999, where Kerry managed the security company Lao Securicor. Their troubles seem to have begun when the owners of Lao Securicor’s main client, Gem Mining Laos (GML), left Laos in May 2000 after a long-running dispute with the Lao Government over ownership of the GML sapphire mine in Houay Xay. The Danes were arrested by Lao police on 23 December 2000 for their alleged involvement in the ongoing tussle, attracting considerable media interest in Australia during the traditionally slow news period of Christmas/New Year.

Initially it was unclear what the Danes’ alleged crime was, because Lao law allows the prosecution up to 12 months in which to prepare a case and charge the accused. Some commentators questioned the amount of cash Kay Danes possessed when arrested at the Friendship Bridge (approximately US$50 000), suggesting that this was unusual and might indicate some kind of guilt. However, carrying large amounts of cash across Lao borders is not unusual, and occurs partly because of the poor state of the Lao banking system. And lower ranking officials mentioned privately that they were unaware of any law that prohibited taking any amount of cash across the Lao border. At the same time, both Lao and foreigners alike suspected that the Danes may have not broken any law but rather been arrested in place of the GML owners, whom the Lao government had been unable to detain because they had already fled the country.

This suspicion highlights the current very weak state of the rule of law in Lao PDR. A lawyer practicing in Lao PDR confided some time ago that he is often reminded by Lao officials that the law often has little relevance to current government procedures, and that procedures and ‘opinions’ carry more weight than the law.

The Danes’ lawyer, the Australian Ambassador and the Australian Foreign Minister were all sufficiently convinced of the Danes’ innocence under Lao law to negotiate and lobby the Lao government for their release. It should be noted that Australian ambassadors and foreign ministers do not make a habit of lobbying foreign governments to release Australian citizens imprisoned abroad, unless they are convinced they have a very sound case.

It seems highly possible that the principle of procedures outweighing the law may have been at work in the Danes’ case, and that although they were arrested and convicted, they may not have broken any law. However, in the opinion of some influential Lao government officials, they were clearly guilty.

The Lao government and its supporters have countered criticism of the case by arguing that Lao PDR is a sovereign state, whose laws and system of government must be respected by all. And that no amount of aid dollars can secure the release of foreign nationals from prison. But what if no crime has been committed? What if we are dealing with procedures that are unclear, unpublicised, unknown? In the Danes’ case, an agreement to pay A$1.14 million in ‘fines and compensation’ was a key condition of their release and pardon.

WATCHPOINT: The nature of the fines and compensation in the Danes’ case continues to arouse a considerable amount of debate in diplomatic and expatriate circles.

 

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