29 October 2007
The official start of the monsoon season has already been pushed back 20 or so days as the collective brains at the meteorological agencies have analyzed the most recent data and the temperatures are not indicative of any immediate rain. Even without any scientific knowledge of the weather, I know that the rainy season has started because last month it might have rained once and during the last week it has rained four out of seven days - good enough for me!
There is a desperate need for the development of infrastructure to deal with the flood issue and the installation of a pump here and there in conjunction with adding a few extra bricks to the top of a flood wall or gate is not really the answer. The answer is committing to completing all of the flood canals that the Government of Jakarta has been talking about for the past 20 years or so. There is also a need to educate the community that you cannot just continue to throw your trash into the canals that are already there or the rivers, streams, or ocean.
It is critical that the new Government of Jakarta develop public policy initiatives to address the flood problem. This public policy then needs to evolve into sustainable and enforceable laws and regulations. Jakartans are no different from any other human being, if you cannot convince them on policy only then bribe them with incentives. Bribe in this case does not have the negative connotation that you probably have jumped on, but simply the Government can extend incentives and facilities in addition to what are already available to those that evidence a commitment to the reduction of pollution and other flood-related factors.
It is simply a case of you trash your environment and your environment will trash you!
In the almost 15 years that I have been in Jakarta and the surrounds (mainly Bekasi) I have been fortunate to have never been flooded out of my various contract / rented houses. That is not to say that some times the rain has not been a pain in, the proverbial, arse with a leaky roof and a paper-thin piece of plywood between me, my bed, and the rain. But I gotta say I am glad that I do not have to replace my furniture and white goods every year as a result of rain damage!
If I was a Jakartan and I if could vote, then I would have demanded from my candidates a policy commitment to tackling this annual problem! Alas, I am not and I cannot and so I did not do any of those things. Thank goodness for blogging because if nothing else at least I have a soap box to preach from!
It is one of those funny in a bizarre coincidence sort of a way. I watched a national geographic program on the Krakatau eruption a couple of weeks ago. The sentiment seemed to be that the Child of Krakatau, although not currently as big as its parent, had similar explosive potential and that in and of itself should be a frightful thought for anyone living in Southern Sumatra, Lampung, or West Java. The bizarre coincidence is that the watch alert on the Child of Krakatau has been raised as volcanic and seismic activity of the past week has seen a huge increase, which if the seismologists are to be believed is indicative of a possible larger eruption in addition to the multiple minor eruptions to date.
I can accept that nature is a powerful force and do not need to have this proved to me again. Is it just a simple case of the natural order of things where the earth restores balance to itself? Perhaps it is an inconvenient truth but what we should never forget...
perhaps we should be a little nicer to Mother Earth and She might be a little nicer to us!
23 October 2007
The Indonesian Attorney General has gone on the record as saying that he will give the lawyers or the family one more month to submit the pardon applications or he will schedule the execution. This makes the assumption that the bombers do not want to be pardoned and that there is a legal precedent for the scheduling of an execution prior to the exhaustion of all possible legal avenues. Unfortunately, for the AG he might not have the legal legs to stand on, as a literal interpretation of the relevant provisions clearly does not impose a time restriction on the inmates to submit a pardon application. To schedule an execution before the appeals and pardon processes have been fully played out would seem to be a breach of the inmates legal rights. It is a different debate with respect to whether they deserve such rights in light of the devastation and tragedy that they are responsible for. Nevertheless, the process must be allowed to run its full legal course.
The government's hands are tied. So, what next? The most simple option and the one most likely to avert ongoing protests from those keen to see the executions carried out sooner rather than later would be for the government to issue an Interim Law. An Interim Law is in essence a Government Regulation in Lieu of a Law that remains valid for a specified period. This specified period is the next sitting of the House of Representatives (DPR) where the DPR is required to either ratify or reject the Interim Law. This in itself creates the bizarre situation where prisoners may be executed under an Interim Law which may later not be ratified by the DPR or even if it is ratified might be subject to a constitutional challenge. The death penalty is already the subject of constitutional challenge by a group of Australian Death Row inmates (members of the Bali Nine).
So, when will the Bali Bombers be executed? Only time will tell but do not hold your breath. It is one of those cases where 'it will happen but we just do not know exactly when'.
22 October 2007
The reality, and perhaps this is a cold hard reality, is that many of these problems are not only infrastructure or services related but cultural in mindset. The ongoing pollution of the environment is a classic example, although not scientific or empirical in measurement, on any given day as one walks along any of Jakarta's thoroughfares it is a regular sight to see people tossing their garbage on the ground. It is sometimes funny in that distinctly sad kind of a way when the person is standing next to an empty garbage bin.
The idea of a green environment and keeping the environment clean requires a cultural mindset shift among the population that it is no OK to pollute the environment, it is not OK to irrevocably damage your children's and their children's future because of your laziness or apathy. Yet, if this mindset is not possible without governmental encouragement, then simple the government must undertake to regulate fines and commit to imposing and then collecting those fines. The mindset will quickly change if you are suddenly whacked with an on-the-spot fine of IDR 500,000. Perhaps even a 3-strike rule where on your third offence within a 6-month period you are arrested and then summarily sentenced to 100 hours of community service, preferably picking up rubbish or cleaning out some of the nasty canals that criss-cross the city.
Yet, this entry was not really about the myriad problems facing Jakarta but merely to note that it is situation normal in Jakarta - traffic jams stretching in almost every direction sometimes further than the eye can see. The new Governor and his Deputy campaigned on a platform that was decidedly light on policy specifics, but now is clearly the time to get some policy specifics in place and confront what is an ever-worsening traffic congestion problem. It is simply the case that even once all of the new bus way corridors are open that those who can will continue to drive their cars to work.
This means that to overcome this desire the government of Jakarta has to commit to action and not to more rhetoric about what it is pretending to do or planning to do. This means doing whatever it takes to complete long-overdue projects like the monorail and to actively find financing for feasibility studies for an extensive subway system. The cold hard reality for the government here is that residents are not inspired to leave their cars at home when the trip to work is likely to involve long periods in hot, sweaty, smelly, and poorly maintained buses. This is exacerbated even further when the available quality public transport does not pass anywhere near where potential commuters live.
The alternative is that once quality public transport infrastructure is in place then those that wish to continue bringing their private vehicles into the confines of the city should do so at their own expense. For example all three in one zones should also include a levy which can be paid in advance and deducted automatically when the vehicle enters the relevant zone. This cannot be IDR 1,000 but something that encourages other modes of transport, so a levy of IDR 50,000 for each time the vehicle enters the zone. Conceivably this might add an extra IDR 3 or 4 million to your monthly expenses. Yet, any of these ideas rely heavily on enforcement and to a greater degree enforcement, or more specifically the lack of enforcement, has always been one of the biggest problems facing any administration.
But in some respects it is nice to return to all things normal even where they are more often frustrating than anything else.
20 October 2007
As the title suggests the author is Andrew L. Sriro, foreign legal Counsel, and a licensed attorney with the California State Bar. As foreign legal counsel with the law firm of Dyah Ersita & Partners with Andrew L. Sriro and also being one of a small number of foreign lawyers actually registered with the Department of Law and Human Rights, Mr. Sriro has recognized knowledge of Indonesian law across a wide range of legal fields. In addition to writing the desk reference, Mr. Sriro is also the Reviser of the Indonesian section of Martindale-Hubbell’s International Law Digest as well as the author of a number of other books and papers on Indonesian law.
The dilemma that all lawyers face in Indonesia is adequate access to legal resources and this is not just a dilemma for Indonesian language materials. The shortage of resources and sources in English language about Indonesian law is more acute than ever. The legal reformasi process may be slow but it is generating myriad of changes that continue to make the practice of law in Indonesia for foreign legal counsel an extreme challenge. This was one of the many reasons Mr. Sriro provides for starting on this desk reference venture.
Consequently, the desk reference is the culmination of Mr. Sriro’s desire to give something back to the Indonesian community, but generally a book in English is going to provide much more benefit to those of the English speaking community residing in Indonesia or Indonesian lawyers with foreign clients using English as the medium of communication than it ever is for your average Indonesian. Nevertheless, this does not detract in any way from the noble goal of making Indonesian legal resources, especially laws, more widely available in English.
The first edition of the desk reference was published in 2005 and it was a slender volume to say the least. Nevertheless, the review was generally favorable. The 2006 edition was beefed-up considerably and contained a significant number of additions. The 2007 edition is bigger again and has undergone significant internal restructuring and the addition of new chapters and elements of Indonesian law not covered in the earlier versions.
Foreign Trade & Commerce
Government & Legal System
Citizenship & Immigration
Holidays & Office Hours
Criminal Law & Procedure
Debtors & Creditors
Liens & Security Interests
Documents, Identification, & Records
Money & Banking
Monopolies, Restraint of Trade, and Competition
Estates & Trusts
Treaties and Conventions
The style of the book is in most cases dual language as most of the key terms are included in their Indonesian form as well. This although sometimes disrupting the flow of reading and understanding the law, it does serve to highlight to the reader the necessary terms in their original Indonesian and their translated English form. Unfortunately, to date there has been no standardized translations of many of these legal terms and this only serves to complicate matters.
Although not a criticism the grammatical style adopted makes sparing use of the articles ‘a’, ‘an’, and ‘the’ giving the appearance of legal document and making for a disjointed reading experience. Most native speakers will undoubtedly sub-consciously insert the missing articles. However, for non-native speakers the style may be a challenge. Once again this is not a criticism of the content.
The content is claimed to be accurate and authoritative and to a large degree this is true. Nevertheless, the author’s intent is to provide an introduction to Indonesian law and not a comprehensive or exhaustive scholarly analysis of each of the individual laws contained in the 24 chapters. Mr. Sriro is unequivocal that despite the accuracy of the volume it is not to be construed as legal advice and any reader needing legal advice should consult a competent professional for that purpose.
The chapters on property, intellectual property rights, business organizations and relations, employment, and dispute resolution are the most comprehensive of the desk reference. Unfortunately, since the date of publication the new Foreign Investment Law and a new Company Law have passed the House of Representatives and this is certain to be two of the chapters that will need to be updated in the 2008 edition.
The desk reference is a valuable contribution to Indonesian legal resources particularly for those whose first language is not Indonesia. It is also a valuable addition because it provides an introduction to Indonesian law. Indonesian law is a complex regulatory framework that relies as heavily on delegated or sub-ordinate legislation as it does primary laws.
Finally, the desk reference is an excellent introduction to Indonesian law for lawyers, business people, and law students. It would also be of considerable use to legal journalists and researchers looking for the relevant law in a certain area. It is certain to come under considerable criticism for any perceived shortcomings and charges that foreign counsel can never really understand the complex nature of Indonesia’s legal system and the Dutch influences that permeate it, neither true nor fair. The book is not perfect and there are some translation and interpretation issues, but it is a considerable improvement over the earlier versions. It is also a valuable introduction to Indonesian law. It is not intended to be an all encompassing legal treatise and it would be unfair to judge this book on this criteria alone.
Nevertheless, with considerable numbers of sub-ordinate legislation being issued it is essential that those with a legal problem don’t rely solely on the desk reference to provide their legal answers but in conjunction with the desk reference obtain legal advice from a competent legal practitioner. But for everyone else with a general interest in Indonesian law and a desire to start a more specific search of Indonesian law, then this is an excellent place to start that journey.
For that reason the desk reference is a worthy addition to any person’s library with an interest in Indonesian law.
16 October 2007
Having now spent many a year in Jakarta, having a maid is par for the course as is the fleeing home each Idul Fitri. Strangely enough I look forward to the maid being back in the kampong as I, for just one week (maybe 2 if I am lucky), get to organize my house the way I want it organized. It is liberating to be able to put stuff in places where you know where it is and there is no need to ask the maid to get it for you or find out where she has put it.
Nevertheless, once the 1 or 2 weeks pass and the maid has still to return, the panic sets in. The liberation of being in control evaporates and the terror of waiting or having to find a new maid dominates the mindset. I am more than happy for the maid to be doing her thing for 1 or 2 weeks provided that for the other 50 or so weeks she is providing domestic structure to my home in terms of washing, ironing, cleaning, and cooking.
One of the big issues with domestic servants is getting past the feeling or idea that it is exploitation of those less fortunate than yourself. However, when push comes to shove, the work is monotonous and probably as boring as all hell, but it is a job, it comes with food and board, and even with a minimal salary a conscientious maid can still send money home to her family. And, if you feel really guilty about it, you can always pay above the market rate to offset any guilt. For me, the maid picks up the slack, where the slack in this case is my laziness to wash and iron my own clothes, sweep and mop the floors, and do the dishes. Aside from that she has the run of the house during the day (and generally well into the evening too!) while I am not home...So, it is not the worst deal I could think of. I dread the day of having to head back home to my own kampong for good and being maid-less forever. May be this is the reverse culture shock that I have heard about :)
The Government has been talking about regulating the domestic servant industry for some time. The critical issue here is that any regulatory framework will make what is in essence an informal employment sector into a formal employment sector. The practical questions would be for the purposes of tax are the maids self-employed or will those that employ domestic servants have to set up a sole proprietorship that employs the maid in a domestic service capacity then withhold tax. It is likely to get very messy in a practical sense. Nevertheless, there needs to be some regulation with respect to treatment of maids and there needs to be legal recourse for maids to be able to get out of abusive situations. The issue with regards to regulation will be, degree. How much regulation is required to ensure the health and safety of domestic servants while not increasing the practical burden on families that employ domestic servants. But, I guess if it is the difference between washing and ironing my own clothes and generally looking after myself any burden, provided it is not cost prohibitive, would be worth the hassle free existence!
Well, another 6 days and the maid will be back, I hope...or it will be time to press the panic button!
A recent US case brought by a German citizen, Khaled el-Masri, who alleges that he was kidnapped, transported to and through various third countries, and tortured was dismissed in the US District Court, was affirmed on appeal at the Fourth Circuit Court of Appeal, and the US Supreme Court refused to here any further appeal on 9 October 2007.
An interesting factoid here is that in the period from 1954 through 2001 the privilege was invoked on 55 occasions. In the period from 11 September 2001 the privilege has already been invoked on a further 23 occasions. The privilege was first accepted by the US Supreme Court in 1953 in the case of United States v. Reynolds.
Striking a balance between the need to maintain confidentiality or even in extreme cases the secrecy of information sources in the interests of national security is a valid claim and there is a real need with the basic rights of individuals who stand accused of crimes to be able to test the evidence against them in a court of law. The State Secrets Privilege is conceivably prone to abuse where the State invokes the privilege but there is in fact no real secrets being preserved. If anything the Reynolds case highlights this with the declassification of the supposed documents that were so secretive that they could not be revealed at the time of the trial.
Independent oversight is critical to fairness of the trial process where State Secrets Privilege is to be invoked. Perhaps the way forward is a specialized panel that can assess the documents subject to the claim of State Secrets and report to the judge on whether the documents should be subject to the privilege or not. Where the determination is that the documents are not subject to the privilege then the judge issues an order for the documents to be released. Alternatively, the process could be a judge-alone trial (simply no jury) and judges are provided access to all documents subject to a claim of State Secrets privilege and makes determinations.
Even so, where the allegations and subsequent charges entail severe punishments the interests of justice must be paramount. The Judge could enforce gag orders and restrict media access and the like but a defendant must have access to the 'evidence' against them to mount a defense. In the el-Masri case there is considerable independent confirmation of the allegations brought by el-Masri regarding the extraordinary rendition process and the torture he suffered. Yet, at every turn his pursuit of justice has been thwarted by a government hiding behind the State Secrets Privilege. Yes, el-Masri had his day in court but the proceedings were hardly fair. The reality is that el-Masri was the wrong man, he was kidnapped and tortured, and ultimately released because he was the wrong man.
It should not be too long before all upstanding democracies in this world seek to enjoy the unfettered power that the State Secrets Privilege brings.
Human rights in the age of terror, if you're lucky!
08 October 2007
The project is expected to start with a preliminary feasibility study to be completed by 2009. This is to be followed with a full scale feasibility study through to 2012. Construction is then expected to take anywhere up to 2025 to complete. When completed the bridge will span the Sunda Strait and stretch some 29 kilometres from the port of Merak in West Java to the port of Bakauheni in Lampung. The bridge is expected to have 6 traffic lanes and 2 rail tracks.
Construction of this magnitude is not cheap and hence the price tag is already USD 10 billion but if other construction programs in Indonesia, such as the Jakarta Monorail, are any indication then it is likely costs will be significantly more than this.
The challenges of building a bridge that will, if completed, have the longest span of any bridge in the world are daunting, but not necessarily impossible. However, the engineering challenges of the span pale into insignificance when one considers this is one of the busiest shipping lanes in the world and someone is intending to pound huge concrete pylons into the sea bed. Surely an interesting navigation hazard for the super-tankers plying their trade through the Sunda Strait. But the challenges do not end there. The bridge is to be constructed in one of the world's most active seismic regions and the tsunami and earthquakes that have plagued Indonesia since 2004 are testament to the fact that the seismic activity in this part of the world is, if anything, increasing. The other fascinating environmental issue is that the bridge is a mere 50 kilometres from the Child of Krakatau volcano. Yep, the volcano that emerged from the destruction of the largest volcanic eruption ever-recorded and one that darkened the world and affected atmospheric conditions for more than 2 years.
Not to be deterred, the engineer, Wiratman Wangsadinata, is confident that the bridge can be built with flexible materials that can endure a size 9 earthquake on the Richter Scale.
The Artha Graha Group is an interesting choice or appointment for the purposes of finding / soliciting funds as Tomy Winata has significant ties to the Indonesian military and is never far away from the news and without his critics.
Time will tell whether the Java - Sumatra bridge is anything more than a never-ending pipe dream.
However, this is a generalization as the issue here is really about who determines what are the accepted teachings of Islam, particularly whether Islam permits the formation of sects or branches of Islam that do not teach the generally accepted line. Christianity has not dealt with this either although the increasingly divergent sects within Christianity are testament to at least some degree of tolerance. Nevertheless, the Pope is on record as telling protestants that they are not real Christians and their churches are not real churches but mere 'ecclesial communities'.
The who determines debate brings us to the Constitution and whether or not there really is a protection for the freedom of religion. Article 28E, which is part of what in essence is a Bill of Rights, states explicitly that Indonesian citizens are free to choose a religion and practice it according to their beliefs. The question now is whether a declaration or fatwa issued by the MUI is superior to the guarantees provided in the Constitution or can fatwas only be issued that comply with the provisions of the Constitution. An interesting debate for sure.
It may be questionable as to how much say the government may have in determining what is an acceptable or standard teaching for Islam but the Constitution would clearly seem to suggest that the government is under an obligation to ensure that there is space for Indonesian citizens to practice their respective chosen faith even where a majority disagrees with that faith or the interpretation on which it is based.
The involvement of police in enforcing a fatwa of this nature also gives rise to an interesting legal issue, namely: do the police work for the state or do they work for the MUI. In order to suppress religious practice it would seem that the order should be one issued by the government and then executed through the relevant channels.
The issue is an interesting one and raises interesting points of debate about religious freedom and guarantees under the Constitution. However, to generalize the majority of Indonesians are in fact tolerant of religious difference, they are accepting of these differences, and as such generally believe that tolerance leads to peaceful co-existence. Nevertheless, it is always the case that a loud and militant minority will always tar and feather the whole - fair? Never fair but since when do things have to be fair!
01 October 2007
Amrozi is the first and all indications are that he is intending to seek a second judicial review of his case and then is likely to seek clemency from the President. Without the presentation of any 'new' evidence their is no legal reason for the Supreme Court to consider a second judicial review application. But stranger things have happened in Indonesia and it is not outside the realm of possibility that Amrozi's defence team has either some new evidence or a novel and creative legal argument that may or may not have validity in terms of further review. Nevertheless, in light of the detailed confessions and other admissions made by the convicts during their respective trials then the possibility of new evidence being adduced that will see an overturning of the verdict or the commuting of the death sentence to life in prison or something lesser still seem remote at best.
The best chance the Bali Bombers had of avoiding death evaporated with the Constitutional Court's creative decision making when they declared the Terrorism Law invalidly valid (worthy of a throwback post).
If the second judicial review fails then an appeal for clemency should extend life, albeit for a short period of time. It is clear that the President is not going to grant clemency as he is on the record as saying that among criminals terrorists and drug dealers are the worst. Once again a back flip would not be outside the realm of possibility but it is unlikely.
Conceivably, this could see the pending executions pushed back until the new year. Yet, as the earlier post on this topic suggested, the wheels are spinning and it is not likely that the delay to the inevitable will last forever. It is important that not only is justice done but that it is seen to be done. Therefore, it is important that these individuals are permitted the opportunity to exhaust all their legal avenues of recourse before being executed by the State.