25 September 2007

Soeharto Inc vs. Time - Seriously Flawed

Reality check! Are you serious? Nah, not possible!

Just when you might have been thinking that the Indonesian judiciary was turning the corner and becoming more accountable and transparent in its decision making processes the Supreme Court (Mahkamah Agung / MA) comes along and blows that all out of the water and re-establishes the old order of things, the Court Mafia rules supreme yet again.

Yet, the decision is unlikely to be a seminal moment in Indonesian legal history but nevertheless it is a watershed moment and one where the challenge is now fairly and squarely with the press to step up and fight for itself and its beliefs that there is a right to press freedom and independence, particularly from this type of judicial interference in investigative reporting both here in Indonesia and abroad.

The case stems from a Time report in 1999 that suggested that Soeharto and his cronies embezzled, syphoned off, or flat out stole some USD 73 billion dollars. Yep, that's right my fair readers 73 billion big ones, I guess what Gordon Gecko says is is true after all "greed is good". Two lower courts found the article at the centre of the claim to be problem free but the MA has decided that the article defames Soeharto's good name and awarded IDR 1 trillion (about USD 106 million) in damages and an order for the magazine to rehabilitate the former dictator's good name.

Interestingly, the UN and the world bank have offered up their services in the form of data and have listed Soeharto and the top of their corrupt officials list along with other notables such as the former Philippines strong man, Ferdinand Marcos (long dead) and Albert Fujimori (soon to be extradited back to Peru from Chile). Yet, it will be interesting to see whether this data is anything more than clippings and other circumstantial data or whether it is cold hard evidence that can be adduced in a court of law. If it is, and Time is almost certainly going to appeal this verdict, then this 'new' evidence could be used to support Time's appeal for review.

The court mafia is clearly alive and well in the MA if not throughout the judicial system. Intriguing is that the Chief Judge in this case, Hoediarto, is the former head of the military court, which in itself is not surprising considering he is a retired general. Nevertheless, the question is whether or not he is a suitable appointment to this case considering the complex nature of defamation action and the overlap with the press law. Yet, the MA has a history of appointing panels of judges that might not be up to speed on the subject matter of the case. It was not so long ago that the MA appointed a panel of religious court justices to hear a matter involving complex financial transactions, the issue of bonds, and an application to cancel these bonds - their verdict was another one for the ages where almost USD 1 billion in bonds were cancelled. Quite a windfall if you are the issuer of these bonds not so if you are a holder of the bonds where that sinking feeling down into the pit of your stomach can be overwhelming to say the least.

The bigger problem here though is whether there is a serious commitment to judicial reform and renewal within the courts themselves. It is decisions like this one that brings the lack of commitment to change to the fore. One must continue to hope because without hope there is nothing left to cling on to.

More to follow on these shenanigans.

Bali Bombers 1 - Imminent Execution - Not This Month

The day of reckoning for Amrozi, Imam Samudra, and Ali Gufron draws ever-nearer. The time is coming where these perpetrators of the carnage that has become know as 'Bali Bomb I' will soon get to meet their maker and find out once and for all whether these actions are condoned as a means of defending one's religion.

Amrozi's appeals ended on 10 September with the refusal of the Supreme Court to entertain an application for review. Now with a similar rejection being handed down to the applications of Samudra and Gufron it would seem that their execution is only a matter of time.

Yet, it is the fasting month and it is unlikely that the necessary paperwork will be sped up to ensure an execution date that falls within this the holiest of months on the Islamic calendar. However, it is expected that with all current legal channels exhausted that the executions will take place soon after the end of the Idul Fitri celebrations that conclude the fasting month. Therefore, those desperately waiting for these executions to take place should be looking for a date some time after 14 October 2007.

The death penalty is always touted as the ultimate penalty but in essence it is really an eye for an eye type punishment and in that sense justice is not really done. These men have been convicted of planning and executing a bombing which resulted in 202 deaths, in effect they are guilty of mass murder. For some the death penalty is an appropriate punishment and for others it would be better for these murderers to rot in jail and never be released. An interesting twist here is that the gung ho and bravado that is part of the egos of these 3 in fact sees them relishing the prospect of death and dying as martyrs to the cause, no matter how misguided that cause may be. Islam does not condone the murder of innocents and in reality that is what this crime is - mass murder of the innocent - Indonesian and foreigner alike.

There is a suggestion that the convicts who are currently serving their time (perhaps waiting for the inevitable may be a more apt description) on the prison island of Nusa Kambangan in Central Java will be transferred back to Bali to face the firing squad. But in that sense it does not really matter, an execution is an execution no matter where it takes place. Dead is Dead! But even more interesting is the belief that getting the executions done and over with is somehow going to improve Indonesia's image abroad. The arguments for and against the death penalty in most cases are intractable and neither side of the debate is likely to convince the other. Yet, if this believe is rooted in the understanding that the rest of the world needs to see Indonesia's toughness in the face of the ever-increasing scourge that is terrorism, then it is not the imposition of the ultimate penalty that will impress, but rather the capture, prosecution, and jailing of the perpetrators of violence and hatred.

Thus endeth the sermon.

16 September 2007

Moot Courts & Visions for the Future

One of the things I seem to do regularly is to provide seminars and work shops on international law, legal writing, oral advocacy, and much of this is achieved through running moot court activities...Yet, when it is all said and done I am always amazed at how little interest there is in mooting - from academia and the profession alike!

For me it has always seemed so simple...mooting teaches you practical skills that allow you to hit the ground running straight after graduation and surely this must be a skill that is highly sort after by employers. Unfortunately, this turns out to rarely be the case and the number of visionary academics and professionals in this field appear to be lesser rather than greater in number...

In brief it is obvious that participating in a moot court activity allows you to learn team work and team leadership skills, focused research skills, writing skills, and advocacy skills, all of which are of immediate benefit in a professional situation!

Why moot? The answer is pretty simple if you are a law student...if you are any good at it an you get team that is good at it,then victories in the various local competitions are likely to take you around the world to participate in international competitions. This is another factor in why law firms should be a little less short-sighted in this regard...a successful law moot graduate is likely to have legal and corporate contacts all over the world. So, if you are a law firm looking to expand your international practice then an investment in a law mot graduate may just reap long-term returns far out-weighing any initial recruitment investment that you may have made...

I guess the moral of the story is that only having participated in a moot court competition can you fully appreciate the benefits that can be gained...to this end therefore mooting must become a compulsory undergraduate subject for all law students - no ifs, no buts, and no maybes...

The convergence on international law and mooting in the Indonesian context is a driving force behind moves to make mooting a greater part of the academic curriculum. It is also a motivating force in moves to see that students who participate in moot court competitions such as the Philip C Jessup International Law Moot Competition or the Manfred Lachs Space Law Moot Competition garner recognition in the form of these efforts are credited as part of their legal studies program. In essence they gain subject credits for their participation - a bold move in Indonesia...This fact that Indonesia has limited numbers of international lawyers with wide-ranging practical experience is a more recent realization for Indonesia and this realization is another reason that there has been a renewed interest in providing these types of practical advocacy skills at the university level...

Only time will tell but the future looks hopeful...

13 September 2007

Ramadhan - A Month of Purification & Renewal

T'is the time of year for the holiest of months for many Muslims - Ramadhan...living in the world's most populated Muslim nation means that the intricacies of the fasting month are all around to see...from those food outlets that voluntarily close their doors during daylight hours to those that opt to whack up a few well-placed curtains and continue running their businesses...

As much as this month is an opportunity to cleanse one's soul and renew the vigor for the coming year, it is also a time for reflection of the year passed...perhaps a year where much was gained and much was lost, where there is cause to be thankful for all of life's little blessings...

To all of you who are Muslim and fasting - good luck in your fast and may you find strength in your beliefs...

Begging & Busking

With a view to cleaning up the streets of Jakarta the Regional Government of this fair city has decided that the most important targets for removal are beggars and buskers. The rationale is one of without "these eyesores" (for me and undoubtedly many others these beggars and buskers are an intricate part of what Jakarta is and in no way an eyesore) blurring the picture of beautiful Jakarta then Jakartans views as well as those of the tourists that visit here will be much improved. It is worth noting that the beggars and buskers are not the only targets here as chewing gum and its indiscriminate disposal has also been targeted, as has Jakarta's thriving sex industry (not all of it underground like some might have you believe). But unfortunately some of the other more troublesome interferences for Jakartans such as the cold calling telemarketers hawking anything and everything from credit cards to cars have remained untouched...

The regulation passed without much fanfare after a long debate in the local parliament and supposedly into the wee small hours of the morning. The biggest issue is the criminalization of these activities and the severity of the fines that are to be imposed. For giving a donation to a street beggar or presumably dropping a few Rupiah into the cup of a busker playing their soulful tunes on a bus, will expose the giver to fines and periods of detention each of up to IDR 20 million and a period of up to 6 months (depending on the offence committed). The purveyors of these activities will be subject to similar fines and terms of detention...

More importantly is the lack of criticism from the community that these legislation changes will bring...Okey dokey, the Government wants to outlaw these heinous crimes of begging and busking but the critical failure of the legislation is that it does not offer any alternative to either begging or busking...if either of these activities is your "bread & butter" income you are going to be loathe to have to give it up without an alternate source of income being available...perhaps there are arguments to be made that providing alternative is not the Government's responsibility as the Government's responsibility is only to making Jakarta the most liveable city it can be but this argument is somewhat hollow when it reeks of a crusty elite in the ivory tower making decisions that potentially devastate the lives of a great many, it would seem that natural justice would be that if you take away with one hand you provide with the other...because without an alternative you condemn the victims, the beggars and the buskers, who are generally speaking already the city's most marginalized to a live of crime, un-payable fines, and ultimately long periods of detention - Yep, there is something wrong with this picture!

But as with any piece of legislation the test is not in passing the regulation but in the enforcement of it...You would think that the police would be keen to enforce it as it is a real revenue earner not only in legitimate revenues but also for those who might seek to supplement their meagre incomes by taking an in lieu payment instead of issuing the proper citation...This is not to say that all Government officials or police officers are on the take, the reality is to the contrary, the point is merely to highlight that those with bad intentions could easily exploit the system...

Will Jakarta be better for this regulation, probably not! Removing and forcing the problems out of plain sight and underground is not addressing the root causes of poverty and nor is it providing sustainable opportunities for the most marginalized and vulnerable in our community. The regulation also removes one of the elements that is Jakarta those that sing, dance, and sell at traffic lights and the intersections of just about every single major Jakartan crossroad...Jakarta will certainly be a much less vibrant metropolis as a result!!!

One would have hoped that legislators of all persuasions would have been motivated to find sustainable alternatives to the huge gap between the 'haves' and the 'have nots' rather than sweep this important issue under the carpet in the hope that over time it would disappear on its own...

As the Great Emancipator said:

"A Government of the people, by the people, and for the people" and this I suggest to you includes all the people of this Republic - rich and poor alike...

07 September 2007

Lapindo - The Mud Continues to Flow

The Lapindo mud flow crisis although no longer an every day news grab, the issue remains within the national interest and on the radar of the House of Representatives (DPR). Moves to an interpellation of the President over the handling of the Lapindo issue has been averted for the time being with the DPR deciding to establish a Parliamentary Supervision Team whose essential task is to monitor the Government’s handling of the ongoing mud flow. The time frame for headway to be made is 3 months and presumably without any significant positive change then the interpellation of the President is back on the agenda.

Yet, this conceivably may be interpreted as just another attempt to postpone the obvious as the Government has had ample opportunity to make headway on the crisis and has failed to do so. Consequently, the decision to establish a Supervision Team was not without opposition with several parliamentary parties noting that the people have been suffering for more than a year and that it is irresponsible to prolong that suffering for a further 3 months.

The questions that arise relate to issues of conflict of interests as the Coordinating Minster for People’s Welfare and Prosperity whose family owns the company that is alleged to be the cause of the mud flow and whether any influence has been exerted to delay a detailed investigation of the matter and the apportioning of legal blame rather than a simple Presidential Regulation as to how compensation is to be determined and paid to the victims.


Interestingly, and something that is not being overtly debated is whether or not if this had been any other company and any other affiliation whether the treatment would have been the same? It is hard to say one way or the other, but what is clear is that Lapindo has been granted a lot of slack to deal with the crisis and has not. It is also clear that the Government's handling of the crisis has been unusual to say the least! The fact that the DPR has now created an oversight team might be testament to the lobbying powers of Lapindo officials rather than a testament to the DPR's commitment to seeing an equitable resolution...This latest move reeks of political posturing and grandstanding among the parties as they position themselves in the lead-up to the 2009 general elections...

The other critical question that arises is whether increased Parliamentary oversight of the handling of this crisis is going to be beneficial over the short, medium, or long term.

Nevertheless, the ongoing Government and Parliamentary involvement is likely to mean that Lapindo is able to avoid responsibility and the financial implications of any adverse findings against them for the immediate future. This involvement also gives rise to the spectre of the Government picking up a large portion of the tab where the responsibility must be with the company that causes the damage.

The reality is that the Government even with the assistance of the Parliament cannot stall accountability and action on the mud flow forever. However, for the victims the most important issues are not only how are they going to be compensated but more importantly when.

The next 3 months will determine whether the Government and Parliament is serious about addressing, and resolving, the issues that have arisen as a result of the mud flow crisis that has inundated the Sidoarjo and surrounding areas...Nevertheless, the longer the Government allows this crisis to go on the less credibility it will have with the constituency...With SBY the leader of what is essentially a minor party reliant on the support of the party of the VP, a lack of decisive action will not bode well for his chances of re-election for a further 5-year term...If the recent Jakarta election is any indication then the voting public appears to be much more discerning now than it was in 1999 and 2004...


Power to the People and then maybe Indonesia will really have a Government of the people, by the people, and for the people!

Viva Democracy!!!

Pekanbaru

Well, no sooner had I arrived home from Japan I was off again to Pekanbaru...for those of you that are unfamiliar with Indonesian geography it is in the Province of Riau which is part of the island of Sumatra...now that the geography lesson is over, on with the story!

I was in Pekanbaru for work on an illegal logging, money laundering, people trafficking workshop...all of which I new were issues in Riau already but was nevertheless surprised at the extent of the problems faced by local law enforcement...

Illegal logging is devastating the natural growth forests of Riau at such a rate that it will not be many years into the future that the forest of Riau will be gone, taking with it the wildlife that it has supported for millenia...Tragedy does not seem to do justice to the extent of the damage being done...but what is tragic is the extent of involvement of government officials in the facilitation of the rape and pillage of Riau's natural environment...it does not seem to be a case of just a "few bad seeds" but rather a "lot of bad fruit"...yet, there is hope because there are people committed to doing what is "right" and sometimes at great personal risk and cost...

The Central and Regional Governments need to get their heads together and come up with a comprehensive and integrated legislative plan and policy to address each of these issues. The problem is not that there is no law in this area but that it is spread out over many laws and regulations and it is unclear and confusing for law enforcers which way they are supposed to turn when a crime is committed...is it corruption, is it a crime against the environmental law, is it an ordinary crime, is it an extraordinary crime, or is it something else all together. This sort of confusion means that law enforcement has generally not been seen to be a deterrent to those intent on profiting from these ventures...

Pekanbaru was not all work and no play...the city is no different from any other regional center in Indonesia; if you ask the right people, they will point you in the right direction. The other thing to remember about Riau is that it is looking to further develop its oil and gas resources meaning that more oil and gas companies are likely to be exploring their opportunities in this region - good for business and good for the development of a raging nightlife! I was surprised at the number of venues available ranging from cafes to live music pubs and to your head thumping beats of disco (whatever happened to the Bee Gees - that is more my disco style)...I guess wherever you have youth you will have venues of this kind...

Don't be fooled that this is a region a fair way away from Jakarta so prices are going to be cheap; there are cover charges and drinks were comparable to hotel prices in Jakarta (30,000 Rupiah for a bottle of water and 70,000 - 120,000 Rupiah for mixed drinks and cocktails) so definitely not for the faint hearted.

The hotel prices were also comparable to Jakarta but the service was not...I expected much better service considering a room sets you back almost 500,000 a night (the only saving grace was that someone else was picking up the room tab)...the bar staff were rude and slow, which was not good, but even worse was that on different nights the bar was out of coca cola, out of beer, and out of snacks...on a different night I wanted to order a drink and was told the bar was closed and then an Indonesia guest came in and was served a drink (I am guessing it was a regular or someone important) but all the same, still somewhat rude...

However, what is a workshop in Indonesia without the obligatory group meal and karaoke fest...it never ceases to amaze me that there is at least 2 or 3 excellent singers in each group, and this group was no exception...the food was great, the singing was excellent, and the dancing a challenge (I need to improve my dancing style to get into the dangdut groove)...

Another interesting 4 days...but back to the real world and back to the real world problems of work and Jakarta...

Japan


Well, I had never been to Japan before so I had been looking forward to going...this was even more so the case because someone else was picking up the majority of the tab (airfares, accommodation, and a not so generous per diem as it turns out)...

The first thing that struck me was that it was summer in Japan and it was hot! Somewhere between 36 and 40 degrees Celsius which was actually nice as it reminded me a little of my summers in Australia. It was hot and dry which is always a nice contrast to the hot and humid weather of Indonesia. I was only there for 4 days and having to work there was not enough time to get out of Tokyo and see the rest of what is said to be a fantastic tourist destination...I would have loved to have had the time to get down to Kyoto and check out the Geisha (the ride down on the bullet train might have been fum as well)...I will definitely get back to Japan someday (it is one of the countries on my list of 1000 things to do before I kick the bucket!!!)...

Japan is comparatively expensive for someone on an Indonesian salary...I understand that with a Japanese salary your standard of living is likely to be much better. But all the same, I guess I have just been spoilt with the comparatively cheap prices that are always available in Indonesia if you want to shop around!

The other point of note is that Japanese obviously like to drink...It was kind of bizarre to walk around the streets late at night and see blokes in business suits sleeping on the footpath using their briefcases for a pillow obviously having staggered out of the bar that they are asleep in front of...Also surprising, although I probably should not be, was the number of African blokes working as touts to the girlie bars...

You gotta love Japanese hotels...24 hour porn channels and access only requires you to buy a card from a vending machine! 1000 yen a card but it only lasts for a short while, so I am told :)...

It was nice to go somewhere where there is a functioning, clean, and efficient public transportation system, particularly the subway which sort of gets you to wherever you want or need to be...Get a map though and learn your way!

The airport, at least the Narita airport, is a long way from Tokyo 70kms on an expressway...but there are public buses that get you to most places in Tokyo for about 3000 yen or the train for about 1900 yen...the bus is easier for first timers if you are unfamiliar with the subway system...

All in all it was a fun 4 days!

Apologies...

It has been a while since my last blog entry (kind of like a confession "forgive me Father for I have not blogged in many weeks!")...been on the road in a very literal sense to Japan and then Pekanbaru...I've been getting around so to speak!

Now that I am back and determined not to be so lazy perhaps I will blog a little more frequently, then again maybe not, who knows...