25 November 2007

The Australian Election

The wash-up is likely to see plenty of buck passing on the Liberal / National coalition side of the fence as well as myriad recriminations, but the Libs and Nats are not the only party to be decimated in the 2007 Election. The Democrats, the party that is supposed to be keeping the 'bastards honest' lost the two senators that were on the ballot. And now they have none!

This leaves the Bob Brown Greens as the balance of power in the Senate, at least after July 2008. However, there is still a family first senator who would appear to be more ideologically aligned with the Libs/Nats. There is also Nick Xenophon, no political novice who got himself elected to the South Australian Parliament on a 'No Pokies' ticket. Yet, this is a step up in the political spectrum and he is likely to be able to wield some swing if he holds a swinging vote.

It is with interest that I read the recriminations have already started, and this is to be expected, but I was equally surprised that John Howard in his concession speech acknowledged and accepted responsibility for the Libs failure. It was very manly of him but when you lose more than 20 seats including your own there are not a whole lot of options on the plate! Even more interesting was the anointing of Peter Costello as the obvious future of the Liberal Party. Considering, the former PM's reluctance to hand over the reins of power this could be construed as recognizing the inevitable.

Yet, by holding onto power John Howard may have in fact done Costello a favor in the sense that the Libs/Nats after 11+ years in government were destined for a fall and as this election showed, spectacularly so. This has saved Costello from being viewed as damaged goods. There has really only been one true Lazarus of Australian politics and he is now readying his departure from political life.

But equally spectacularly as the crushing loss the anointed opposition leader has announced that he is going to quit the parliament for a life in business sometime during the next term. In a very LBJ way he has stated unequivocally that he will not seek nor will he accept the nomination of his party for the leadership of the Coalition. This serves to open-up the leadership race and at the same time it highlights the disarray that the Coalition is in as it prepares to enter opposition. The prospect of a bruising Liberal leadership battle undoubtedly has the newly elected Labor government salivating at the opportunity to inflict further pain on the severely wounded Coalition ranks.

Well, the Labor party made many a promise to the electorate about how it was going to conduct the business of government going forward and for the last 24 hours there has been nothing much said except for 'we are ready to hit the ground running'.

So, as Big John McCarthy of UFC fame was renowned for saying, "let's get it on!"

Steal and Lose a Hand!

The implementation of strict Sharia Law in Indonesia was always thought to be a matter of time proposition in the world's largest Muslim nation. However, there was always an underlying hope that this would not come to pass as the potential for this to become a trigger of social unrest and conflict is also a matter of time proposition. Unless, the laws apply universally across the archipelago then a double standard of punishment will be in effect. No doubt an interesting case for the Constitutional Court to hear in light of the no discrimination articles in the 1945 Constitution.

With the decentralization and devolution of central government authority as a consequence of greater regional autonomy there has been a significant increase in the number of Sharia-based or inspired laws finding their way on to regional statute books. Bulukumbu in the Province of Sulawesi is touted often as an example of Sharia Law implementation.

Since 2002 there have been laws implemented relating to the drinking of alcohol, gambling, the compulsory wearing of Islamic attire, as well as compulsory learning of the Koran. Depending on who you ask there is a sense that with the implementation of Sharia Law there has been a decrease in crime, gambling, and other sinful activities. There is also a belief that women are more pure. This is to be expected considering that Sharia Law is seen as the laws of God as implemented on earth.

For non-Muslims wanting to become part of the Civil Service in this part of the world, a headscarf for women is also compulsory attire. The justification is that it is part of the uniform and if you want the job you wear the uniform, simple enough!

However, it is being reported that 20 villages within the Gantarang municipality have agreed to implement a regulation that requires the hand of a thief to be cut off. It seems that this is conditional on the thief being caught red-handed (pun intended). At the same meeting it was also agreed that for offences relating to alcohol and gambling the public canings will be upped to a level of 80 lashes.

In the period since regional autonomy was legislated there has been an explosion in the numbers of regional regulations being enacted. The exact amount of suspect regional and local regulations that would not comply with the necessary superior legislation is estimated to be in the hundreds and possibly thousands. It is not uncommon for the Department of Home Affairs to cancel non-complying regulations. So, it will be interesting to see whether this particular regulation survives the cut (again the pun intended).

The biggest fear is vigilante justice. How is this regulation to be enforced and who gets to decide when the punishment must be implemented. In Indonesia it is not uncommon for a victim to scream out thief and the local populace come to the rescue by chasing down the alleged perpetrator and beating them senseless, sometimes to death, but without a doubt within an inch or two of their lives. This form of retribution is often excessively violent and because of its instantaneous nature completely free of any due process of law.

But in the meantime if you are ever in any one of these villages make sure anything you pick up you put back or pay for it!

21 November 2007

CSR - Kalbe Farma Style

Corporate Social Responsibility (CSR) has become a big issue in Indonesia over recent months with the enactment of the new Company Law which now mandates that companies incorporated in Indonesia undertake CSR programs. CSR prior to the changes to the law was voluntary and most companies did some form of CSR generally to promote good will within the communities in which they operated.

However, as part of a recent Jakarta Post supplement there was a report on how PT. Kalbe Farma Tbk. was providing its CSR program to the masses. Kalbe is a pharmaceutical company and has decided to provide free psychological assessments to school children in grades four, five, and six across 20 State-run primary schools in West and South Jakarta. The program is presumably to identify the skills and interests of the children tested. However, the program is really a marketing tool as it also includes a free seminar on child development and intelligence which then endeavors to promote the value of a multivitamin product in a proper diet and education program. The question is this really what the concept of CSR is or is this purely another means of marketing a firms' product with a view to fattening up the bottom line?

What is even more interesting is that Kalbe intends to evaluate whether there has been any positive impact on the children's school performance six months after they have started taking the multivitamin supplements. I am no medical ethicist but this sounds like a medical / medicine trial to me. Where the purpose of the free testing and subsequent seminar is to secure the parents' consent to their child being a part of the trial. If the idea of CSR for pharmaceutical companies is putting their local communities into medical trials then I must have misunderstood and also missed the point of CSR as it is defined in the new company law.

A better CSR option would be Kalbe setting aside funds for the development of free community clinics and then providing medicines to those clinics. Or better still developing local capacity through the granting of education scholarships to those most in need.

Medical trials as fulfilling the obligations for CSR programs - shame on you!

Promulgating and Disseminating Legislation

The enactment of Presidential Regulation No. 1 of 2007 on the Enactment, Promulgation, and Dissemination of Legislation has meant that there is a need for the Minister of Law and Human Rights to issue Regulations to give effect to the provisions of the Presidential Regulation.

The Regulation is intended to provide guidelines on the promulgating and dissemination of legislation through the State Gazette, the Supplement to the State Gazette, the State Reports, and the Supplement to the State Reports, as well as to the broader community.

The Minister of Law and Human Rights retains the authority to publish legislation in the relevant State Gazette and Reports and their Supplements. This Authority is delegated to the Director General of Legislation.

The Regulation lists the types of legislation that is to be published and where it is to be published. Generally primary legislation is to be published in the State Gazette and other regulations are to be published in the State Reports. The elucidations to primary legislation are to be published in the Supplement to the State Gazette and elucidations to regulations are to be published in the Supplement to the State Reports.

Promulgation is to include the assigning of a number and year to the relevant Gazette and Report. Once numbers have been assigned these are to be forwarded to the Minister of Law and Human Rights for signature.

Gazettes and Reports are to be published no later than 14 days after legislation is enacted. And there is to be an annual publication of both the Gazette and the Report.

Dissemination can be done through print, electronic, and other forms of media. The publication of the Gazette and the Report can be either individual or as a collection. The electronic dissemination is based on access through the following website:
www.djpp.depkumham.go.id. The dissemination process includes socialization of the legislation through seminars, workshops, and direct dialogue, among others.

Criminal Procedure in Indonesia

The Bill on the Criminal Procedure Law is expected to be finalized and ready for submission to the House of Representatives (DPR) by August 2007 (and it is still yet to do this). However, this target date is far from being assured and further delays are possible. Nevertheless, the Bill introduces some significant changes to criminal procedure and these changes will have an immediate impact on the conduct of criminal matters from the investigation stage through to the verdict and appeal stages.

The most interesting of these changes is the incorporation of the Judge de Liberte de la Detention concept as the Judge Commissioner in the Bill. In essence the Judge Commissioner has the authority to evaluate the investigation and prosecution phases and other powers as granted under the provisions of the Bill.

Some of these other authorities include re-interrogating suspects and witnesses to ensure that a proper trial has been conducted. These authorities permit the Judge Commissioner to make determinations regarding the legality or not of any arrest or detention, to issue search and seizure orders, and the tapping of telecommunications, among others. The Judge Commissioner will also oversee the cooperation between the various law enforcement agencies to ensure that the case file does not bounce around these agencies and cause a delay to a fair and speedy trial process.

The position of Judge Commissioner will be held by a judge selected from the High Court and then appointed by the President for a term of 2 years.

The time a suspect can be kept in detention is reduced to 15 days and any extension to this period of detention is to be based on an application to the Judge Commissioner. If the application is granted the detention period can be extended.

In terms of legal recourse for the parties to a proceeding, all decisions may be appealed to a higher court; District Court to High Court and High Court to Supreme Court. However, acquittals are specifically excluded from this list. The current practice within the courts makes a distinction between absolute and conditional acquittals however this distinction is not made within either the current law or the Bill. On face value this distinction would appear to allow subjective discretion to be applied by the courts in accepting lower court decisions on appeal.

The judicial review (peninjauan kembali / PK) for cases will only be granted if there is new evidence or a situation existed that was not know at the time or adduced in the hearings that would have resulted in a different decision. Decision where there are conflicting decisions handed down for the same crime to different defendants, one is found guilty and the other is acquitted. In these cases the decisions will be subject to review.

The other issues in the Bill of interest are the broadening of the authorities for prosecutors to set aside cases where the allegations relate to minor offences subject to a term of imprisonment of less than a year or a fine or where the suspect / defendant is above 70 years of age.

It is unlikely that this Bill will pass the DPR in 2007.

Supervision of Business Competition - Indonesian Style

Business competition in Indonesia is an interesting dilemma particularly when you are trying to develop a more conducive investment climate for both local and foreign capital investors while simultaneously always trying to ensure that the competition that you allow under this climate is fair and not monopolistic in nature. The decision handed down by the Commission for Supervision of Business Competition (Komisi Pengawas Persaingan Usaha / KPPU) in a recent case involving monopolistic and unfair business practice in the telecommunications sector is an important lesson as well as indicator as to where Indonesia stands on the issue of cross-ownership. The case will undoubtedly become known as the Temasek case and the case itself involves both an Indonesian telecommunication company and nine Singaporean telecommunications companies.

The most interesting aspect of the decision relates to the manner in which the KPPU is going to define cross-ownership in the future. If the KPPU is to maintain this definition and interpretation then foreign firms will need to consider the way in which they structure their ownership interests in Indonesia. This would be for no other reason than to avoid the steep fines that the KPPU has dished out in this case.

The crux of the case revolved around the ability to appoint members to key positions and access to sensitive business data and information that would allow the Reported Parties (defendants) in this case to dictate market practices and prices.

There are ten defendants in the case and each were fined IDR 25 billion for the breaches of Law No. 5 of 1999 on The Prohibition Against Monopolistic Practices and Unfair Business Competition (Anti-Monopoly Law). The KPPU has the power to fine but the size of these fines is at the very high end of what the KPPU has dished out in the past. When combined with the other orders that further restrict the defendants' income generating potential, then the decision has long-term implications for all the companies concerned.

The ten defendants are: Temasek Holdings Pte. Ltd (Temasek), Singapore Technologies Telemedia Pte. Ltd (STT), STT Telecommunications Ltd. (STTC), Asia Mobile holding Company Pte. Ltd (AMHC), Asia Mobile Holdings Pte. Ltd (AMH), Indonesia Communications Limited (ICL), Indonesia Communications Pte. Ltd (ICPL), Singapore Telecommunications Ltd. (SingTel), Singapore Telecom Mobile Pte. Ltd (SingTel Mobile), and PT. Telekomunikasi Selular (Telkomsel).

It was argued that the Indonesian government was the majority shareholder in the respective local companies and therefore the defendants had no ability to dictate market practices or prices. Unfortunately for the defendants the KPPU rejected this position. The basis for the rejection was reasoned solely on the point that the government is not a business entity and in any event holds shares in the national or public interest. There are a number of logical extensions that lawyers will be able to explore based on this interpretation of the government not being a business entity (but these are for another blog entry).

Aside from the heavy fines the KPPU also ordered the foreign defendants to sell all their shares in the Indonesian companies and then restricted them to repurchasing a maximum of 5% of the shares sold. This must be completed within a period of two years. The KPPU further ordered that the purchasers of the shares do not enter into any association with Temasek.

What can be derived from this decision is that the KPPU views cross-ownership as a scourge of fair business practices and the power that cross-ownership provides is akin to a monopoly that allows a single business entity to determine key appointments and have access to crucial business data that then permits them to engage in unfair business practices and ultimately price-setting for the entire market.

There is little doubt that the defendants will appeal. The appeal will be held at the District Court. It is expected that this appeal will be lodged within the next 14 days.

Any suggestion that this decision will bring into question the independence of Indonesia's courts and tribunals is a little premature. Furthermore, the impact on business confidence is likely to be limited, at least until after the judicial process has run its course. The reality is that there is precedent for bad tribunal and court decisions being overturned on appeal.

Calm heads and patience needs to prevail.

18 November 2007


Here are a couple of Robert F. Kennedy quotes to ponder...

  • There are those who look at things the way they are, and ask why... I dream of things that never were, and ask why not?

  • Few will have the greatness to bend history itself; but each of us can work to change a small portion of events, and in the total; of all those acts will be written the history of this generation.
If each of us were to keep these two things in mind we would collectively make the world that we live in a much better place for everyone, including ourselves!

Revisiting the Past - Making it Right

Australia has a rich and proud history and just like any other country we have issues in our history that must never make us proud. But historically these dark moments have always been swept under the carpet or hidden out of sight, yet always haunting us and preventing us from moving forward as we might have done as leaders in reconciliation. The cold hard reality of Australian history is that it does not start in 1788 with the arrival of the first fleet and a couple of boat loads of criminals.

This arrival perpetrated another myth in Australian history that the British were simply off-loading their petty criminals to a desolate land many thousands of miles away; another out of sight out of mind scenario. Yet, another reality that Australia is only now beginning to talk about more openly is that many of these transported criminals were not petty thieves stealing bread and lace handkerchiefs but hardened murders and rapists. So, this badge of honor that many Australians claim of being descended from convicts might also be revisited just to make sure your famous ancestors were in fact petty criminals and not the more-hardened version.

Australia's history started many, many, many millenia before the arrival of the British folks from across the vast seas. Australia may in fact claim to have one of the longest continuing living indigenous cultures in the world. The history of Australia's indigenous population in the post-1788 period is anything but rosy. This tragic past includes the extermination, perhaps even a holocaust in the terms of the outcome, but in any language it was the complete annihilation of the indigenous aboriginal population from Tasmania. When one considers this event it is hardly surprising what was to follow.

It was not until 1967 that Australia's indigenous population were even recognized as citizens, which not only allowed people to vote but also to own property and the like; those things that everyone else always takes for granted. Yet, this is not the start or finish point of this tragic story. The story is also way more than a single blog entry. The policies of successive Australian governments was always characterized as protecting the indigenous population from itself, the underlying premise was very much one of assimilation and not multiculturalism, simply an ill-conceived attempt to make black into white.

These policies included removing indigenous children from their families and fostering them with white families. It is not rocket science to imagine what sort of confusion this is likely to do to a child who is destined to never fit in anywhere and never have a full understanding of their cultural identity and underpinnings. This governmental stupidity spawned the stolen generations and it is only now that the broader Australian community is getting a sense of the tragedy that was allowed to occur under our collective noses.

Once again there is too much to this story for a single blog entry. So, to the point! Can we make the past right? Probably not and probably never. However, we can try. The Prime Minister, although unlikely to be re-elected for another term has indicated that the current government would hold a referendum to insert specific wording into the Australian Constitution to recognize indigenous Australians. Perhaps too little too late, but it is a start. This aside the most appropriate response is a full-fledged apology. This apology must not be short on substance. It must recognize that the policies of the past led not only to mistakes but to tragedy and it is these tragedies that must be recognized. It really is a simple word - Sorry! Let us all move towards reconciliation not only in words but in content. We might not be able to make it right but we can commit to not making the same errors of the past.


Prospective Prosecutions

Will Indonesia prosecute based on the findings of the NSW Deputy State Coroner? Not likely! As far as the Indonesian government is concerned, it is case closed. And to all intents and purposes it probably is. But that does not belittle the work of the coroner in exposing the cover-up of events of that fateful 16 October 1975.

The cover-up was not only one-sided and to this end the Australian government was complicit in allowing events to unfold as they did and any failure to acknowledge this fact would see an inaccurate alternative history continue to be perpetrated. The findings of the coroner clearly show that this was not simply a case of being caught in the cross-fire but rather a case of cold, calculated, and brutal murder of civilian journalists.

Despite Indonesia's claims that the process was one-sided, the insinuation here being the proceedings were biased against Indonesia, the fact remains that there was considerable eyewitness testimony without the need for any appearance by Yunus Yosfiah. There was ample testimony available to reconstruct the alleged events of that day. It must be remembered that the
NSW Coroner's Court is a court for the purposes of inquiry. Inquiries generally occur where the death is violent, unnatural, unusual, or suspicious or the circumstances surrounding the death are unclear.

Ali Alatas, the former Indonesian Foreign Affairs Minister, has written an interesting account of his time as the Foreign Minister and the fact that East Timor was like a pebble in Indonesia's shoe. The analogy suggests that the 'issues' surrounding Indonesia's occupation and integration of East Timor were a distraction more than an all consuming focus. Similarly, for the Australian government what happened in Balibo is perhaps a similar distraction. This is not to lessen the tragedy of either but rather the point is to highlight why these matters have been allowed to go on with so little governmental action. Yet, the findings handed-down in this case are an opportunity for both the Indonesian and Australian governments to remove any further distractions from the bilateral relationship once and for all.

What is likely to complicate things for the Indonesian government is that it is a signatory to the
Geneva Conventions and the characterization of the murders of Brian Peters, Malcolm Rennie, Greg Shackleton, Tony Stewart, and Greg Cunningham as a war crime in effect demands that Indonesia follow-up on the allegation. The Geneva Conventions would provide for Indonesia to either extradite the alleged perpetrators to Australia for trial or conduct the trials within Indonesia.

Will Indonesia extradite? Simply, No! Will Indonesia prosecute the still living alleged offenders, Simply, No! Even if Indonesia were to further investigate the risks are great as any further investigation will lead to two possible outcomes; the case really is closed and there is no additional information to be uncovered or the investigation will reveal a 30-year cover-up that exposes a whole range of other military and government officials, perhaps on both sides of the Timor Sea.

Yet, even if a prosecution was to go ahead the likely outcome based on previous experience would seem the perpetrators being acquitted. The direct referendum in Timor Leste, the violence that occurred in the immediate aftermath, and the subsequent trials held in the Central Jakarta District Human Rights Court suggest that convictions are unlikely for serving or retired Indonesian military personnel.

The way forward would see Indonesia finally giving a full account of what occurred, accepting responsibility where required, and really closing this matter once and for all. The positives for Yunus Yosfiah in this scenario are limited but in contrast the positives for the Indonesian government are numerous. The most prominent of these would be wide-spread and global recognition of Indonesia's coming of age as a democracy committed to the ideals of justice and humanity in addressing its past.

Indonesia is not the only country that needs to address its past. Australia must also revisit and address its failures in this matter and hopefully the findings of the NSW Deputy Coroner will provide the impetus for this to happen.

17 November 2007

Australian & Indonesian Relations

Trying to escape the past is never easy and anyone who thinks it is should look at the recent findings of the NSW Deputy State Coroner in the inquest examining the deaths of five journalists in Balibo (Timor Leste) in 1975. It may have been some 32 years ago, but wilful killing is wilful killing and to tolerate it lessens us as human beings and to try and justify it must expose us for our lack of humanity and desire for justice.

The findings will not provide closure to any of the parties concerned and neither does Indonesia's insistence that the case has been closed and there is nothing to revisit in the matter mean that the case is in fact closed. To the contrary, the findings by the coroner provide a means of proceeding to formal charges of the perpetrators of the alleged crimes. Interestingly, the crimes have been characterized as being international war crimes and as such this means that the issue of universal jurisdiction arises.

The language of the findings was blunt and state that the killings were wilful and not in the heat of battle, suggesting a deliberateness and premeditation that would be a clear violation of the Geneva Conventions. The coroner has stated in unequivocal terms that the five newsmen "were shot and or stabbed deliberately, and not in the heat of battle."

Now that the findings have been handed-down it will be a diplomatic challenge for the Australian government to handle the fall out, irrespective of whether the reigns of Australian government change from Liberal/National to Labor on 24 November 2007. Nevertheless, the Labor Party has upped the ante, so to speak, with the Party leader suggesting that not only are the allegations and findings serious but that a Labor government would allow war crimes prosecutions to proceed.

Even though Australia has not prosecuted under the provisions of the Geneva Conventions directly, it has though prosecuted under domestic legislation that has relied on the provisions of the Geneva Conventions and other international legal instruments.

However, the problem is not only Australian here as there will now clearly be a ratcheting-up of pressure on the Indonesian government to be more serious in its approach to seeing justice done for alleged abuses of the past. Particularly, there will be pressure to see that any truth and reconciliation or friendship commissions do not provide blanket immunities for perpetrators of alleged human rights abuses.

An Indonesian fear that this may just be a precursor to more international trials is reasonable. But, from a justice perspective; you do the crime you need to do the time. In other words these are allegations that need to be tested in a court of law and not only in the court of public opinion. we cannot let bygones be bygones in this case because if the evidence that arose in the coronial inquiry suggests that there is a case to answer here. Nevertheless, Australian government officials have already begun to suggest that the findings are the first step in a long road that will take considerable time.

In terms of prosecutions, the most recognizable of the alleged perpetrators is Yunus Yosfiah, a former general and one-time government Minister for Information. The givers of the orders Moerdani and Kalbuadi are dead so prosecutions are not possible against them. Yet, the Indonesian government seems confident that the not is the case closed, but that the Australian government will tread very carefully in pursuing any action in this case.

Despite the insistence from both sides that the coroner's findings will not rock the boat it is premature to say this with any conviction. Right now with the only issue being the findings, then this may be true; the boat will sway a little but it will not rock! Yet, if the Australian Federal Police pursue further investigations and this matter then proceeds to the Commonwealth Director of Public Prosecutions, then the little sway may soon develop into a full-scale rocking of the boat.

It would not be long before Commission I of the Indonesian House of Representatives and other members of the community started a call to suspend diplomatic relations with Australia. Will Australian and Indonesian relations survive an attempt to bring this matter forward to prosecution, probably, but there will be certainly elevated levels of tension for the duration.

The wait continues!

16 November 2007


The importance of family can never be under-estimated. It is always your family that is there to bail you out, may be not in the ways you had imagined, but there all the same! At least this is how it is in my family. It might be a little cliche but nevertheless true that 'blood is thicker than water'. I am fortunate to have had such a stable family upbringing but as you move out on your own and form your own family the pressure is always on to create that which you have just left and enjoyed before.

From a really young age I was always certain that I would never get married, not so certain that I would not have kids (different culture where these sorts of things are not frowned upon as much as in other cultures, depending on who you ask of course!), but could never really see myself being able to duplicate the success that my parent's marriage and finding safety in the desire not to try. It has been 40 years since they took the plunge into wedded bliss.

Despite this insistence on never getting married, the marriage thing sort of creeps up on you. Not only what some societies expect is the proper marriageable age but what your family wants for you as well. When it is all said and done my family is conservative in their ideas of family and marriage. Yet, accepting of all whatever their individual circumstances might be.
I did try and delay it as long as possible and did the dating thing for more than seven years before taking that fateful plunge into wedded bliss. Five years and still going is a bit of an achievement in and of itself for a bloke who was never going to tie the knot! Marriage is much harder than one can imagine as you try and merge two individuals into one married couple. Persistence and patience are the keys to getting it right along with always seeing the big picture. But it is the challenge that makes it fun!

I am sure there are plenty of reasons for families to come apart at the seams but there are always good reasons for putting in the hard yards and trying to make things work.

The purpose of this blog entry is just me pondering about where I am today and the importance of family in getting me to this point. The picture is of my folks and my better half and wife (aka Neng) in Phuket earlier this year.

14 November 2007

Constitutional Court and the KPK

Yesterday, the Constitutional Court handed-down its decision in an application for judicial review of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK) and not surprisingly the decision rejected the application. The question before the Court was whether or not the provisions of Article 29(d) of the KPK Law was in breach of the non-discrimination provisions contained in Articles 28D(3), 28H(2), 28I(5), and 28J(1) of the 1945 Constitution.

Article 29(d) stipulates that the leadership of the KPK must have an undergraduate law degree or some other degree and at least 15 years experience and expertise in either the fields of law, the economy, finance, or banking. On face value these conditions would be discriminatory against those who do not possess either degree or experience. However, the Court after hearing (in reality this was read as it was written) the testimony of the House of Representatives (DPR) the Court held that conditions such as these did not represent discrimination but were in fact reasonable objective measures to determine the ability and capability of prospective candidates for KPK leadership positions.

To get to this point the Court relied on the Human Rights Law (Law No. 39 of 1999) which defines discrimination in terms of religion, ethnicity, race, grouping, social and economic status, sex, language, or political affiliation. Nevertheless, a creative advocate might be able to make sustainable arguments that social and economic status effects one's ability to gain an education and therefore this would serve to discriminate against them in later opportunities.

The simple reality is that corruption is not always simply being paid of or receiving a 'bonus' for your illicit assistance in gaining an advantage. Sometimes corruption involves myriad complex financial transactions as the perpetrators seek to cover-up their illegal deeds. This in turn means that not all people possess the necessary qualifications, experience, or skills to do the job at hand. Generally, the little people's concerns about the KPK relate more to the commitment of the leadership to eradicate corruption than the qualifications that the leadership holds. Most people want to see corruption reduced and where it still occurs be severely punished and if this means that people have to hold a degree and 15 years experience to qualify, then so be it.

Actions speak louder than words (well, I am sure I read that somewhere). So, perhaps if we all took a little responsibility ourselves in this regard and said no to corruption in spite of the personal inconvenience that this might cause us, then we would all be just that little bit closer to reducing corruption

Enough of the Soap Box for today...

Translators and Interpreters

What makes a good translator or interpreter? I have had pause to consider this over the last couple of weeks. For two reasons: a tender that came up for both translator and interpreter work and the fact that I have just completed a couple of days working both as a translator and interpreter. What follows are some thoughts on this...

The essence of translation and interpreting work is conveying the meaning of the presented material to the participants or target audience. Simply, a basic knowledge of words or a vocabulary is not enough. An in-depth or intimate knowledge of the intricacies of the source and target languages is also critical. A classic example is an interpreter's ability to translate accurately jokes or idioms which may appear simple in the source language but may not be funny in the target language or even have an equivalent.

Personal experience in Indonesia has afforded me an insiders view on the field as it is. This experience has taught me that the best translators and interpreters are not necessarily employed by specialized companies focusing on these activities but rather they are individuals who do translation and interpreting work as a hobby or to supplement their incomes from their primary job. This experience has also taught me that there needs to be a re-evaluation of the certification process and more stringent controls put in place to ensure that certified / sworn translators are capable of doing the job that they have been certified for.

There are many classic examples of where translators get it wrong. Nevertheless, if you are employing the services of a translator you would expect that you would get guaranteed quality on which you could rely. But, if you get something that should have been translated as "this law will come into force one year after its enactment" translated as "this law will be in force for one year" you will certainly start to doubt the quality of the certification system. The reality, on a personal level, is that the system does not allow for foreigners to be certified locally as sworn translators. So, being a sworn translator is not something high on my agenda at the present time.

Interpreting is all about gaining trust; the trust of the presenter and the trust of the audience who is to receive the material. This is not something that I have ever had trouble with despite some initial concerns which the first couple of sentences put to rest.

In a nutshell, and as I have recently been told, "you gotta be able to walk and chew gum."

05 November 2007

Benjamin Franklin

"A countryman between two lawyers is like a fish between two cats."

This quote certainly fuels the sentiment, the anti-lawyer sentiment that is! I hope I never become that bitter and twisted that I see my fellow human beings as just another meal ticket on the road to riches...it certainly was not the reason that motivated me to study or practice law!

Local Knowledge or Plain Stupid?

Mt. Kelud located in East Java has been on heightened alert for the past two weeks as volcanic and seismic activity has been increasing. The suggestions of the meteorological heads is that an eruption is imminent. Most recent reports say that in the last 24 hours the water temperature of the crater lake has increased a significant 25 degrees. Apparently a surge in temperature of this me is indicative of magma getting close to the surface and consequently it is also indicative of a possible eruption.

The Government has ordered an evacuation but it is thought that some 25,000 inhabitants have decided to play a little bit of Russian Roulette and are refusing to leave. The Government has also sort to put in place a 10km exclusion zone, but as with anything else in Indonesia, enforcement is the key and there appears that there has been little or no enforcement of the exclusion zone. Yet, the Government seems to be relying on the belief that they cannot force people to leave and if people want to stay then the outcome is not the responsibility of the Government.

Many locals are of the belief that they have experienced Kelud eruptions in the past and have excellent local knowledge as to where the lahar (a combination or mud, rock, and ash) if the volcano erupts. The question as to why stay when there is obvious and imminent danger; simply, who will tend the crops and the livestock if everyone flees. When it is all said and done, one still has to make a living and probably support a large and extended family.

Aside from this the villager have reverted to their traditional beliefs that if they are respectful of the mountain the mountain will be respectful of them. This means that villagers ensure the turning off of all lights and conversation is but a whisper.

Only time will tell if this local knowledge will trump the apparent foolishness of going head-to-head with mother nature and her fury!

Legal Education and Plagiarism

The idea that Indonesia is a country that does not recognise copyright but rather recognises the right to copy is a play on the two principles. Most Indonesian students would not realize that there is in fact a legal right to copy in limited circumstances and generally this is related to fair use. But more intriguing than the right to copy is the lack of knowledge and understanding that Indonesian university students have on the whole about plagiarism. It is this misguided notion of right to copy that appears to have permeated into and reduced the understanding of students on the serious nature of plagiarism.

To state that plagiarism is simply not giving credit where credit is due is a misrepresentation of the seriousness of the fraud perpetrated. It is academic theft and the punishments must be severe if educational institutions are serious about stomping the practice out! There is a whole website dedicated to issues of plagiarism. Yet, even better is a website that exposes famous people who are allegedly plagiarists. Despite, the disclaimer that the people on the site are 'alleged' plagiarists, the site itself highlights the scourge that is plagiarism and the stupid belief that in this modern day and age of technology and super-sophisticated search engines that people still think they can get away with plagiarism, Stupid!

This piece is not an analysis of the statistical occurrence of plagiarism in Indonesia and it does not claim to be definitive or empirical, but rather it is a personal musing based on the personal experiences of someone who has taught a class or two at a number of Indonesian universities.

Having spent plenty of years in university getting a couple of degrees and having it constantly drummed into my thick skull that when in doubt on must footnote and then to teach a University class in Indonesia where it seems to be a case of when in doubt claim it as your own, has most certainly been an eye-opener! It is not something that has shaken my world but more so it is once again one of those perversely funny and sad moments rolled into one.

These students are the next generation and it is sad that they do not appreciate that academic theft and fraud are real professional killers in the professional suicide sense. But how serious the allegations are treated and the punishment meted out if proved depends on who you are. Plagiarism has become a scourge in even the most pre-eminent of universities including, among others, Harvard University. At Harvard a group of students had banded together and produced a blog, which sadly seems to have stopped being updated.

The point that I am trying to make from my soap box is simple; there must be a clearly defined prohibition against plagiarism for law students where the consequences of breach are also clearly defined. This must be a contract that students' sign to acknowledge that they are aware of the penalties and accept them.

The possibility of the rotten core consuming the whole is real!

Getting Up Early...

Getting up early is definitely something I should do more often. It does not matter where you go in this big world of ours a good sunrise or sunset is something not to be missed. Just to sit and watch the sun slowly rise over the horizon or set below it answers many of life's questions without the need for expensive analysts.

As I sit here watching the sunrise, and ruing the fact that the battery of the camera is as flat as a tack (so, no photo for ya!), tapping away on the keyboard while savouring the smell of my coffee as the vapours slowly waft past, it dawns on me (pun intended) that there is something so much bigger than us out there somewhere. And that it does not really matter where this something is!

The poetry of life is a beautiful thing and watching a sunrise gives you the opportunity to see life in action, poetry in motion! As the sun rises and the day's activities start in earnest, it is refreshing to watch how others go about their daily chores. There seems to be a recognition that life goes on irrespective of whether yesterday was a good, bad, or ugly day. With a new morning there is the chance of a fresh start, a new beginning.

It has been a while since I have watched a sunrise and I am happy that I have done so today. I have started the day looking at the world in a slightly different way and appreciating being alive. There is much to be done and as Abraham Lincoln said, "In the end, it's not the years in your life that count. It's the life in your years."

Compulsory Military Service

Fostering national unity in diversity through compulsory military service. Although no one is saying so explicitly the Draft Bill being prepared for parliamentary debate some time early next year will require all 'men' between the ages of 18 and 45 to enlist in a military reserve. Presumably this will be any branch of the armed services, but not necessarily of the prospective reservists choosing.

The Bill is being drafted so the actual or specific content is still subject to debate and change as the process motors along. Nevertheless, it seems whether you want to or not all Indonesian men are destined to become part of Indonesia's war machine. A system of 'on call' reservists ready, willing, and able to deploy to whether the Government thinks they are needed. I guess it is somewhat reassuring that one of the drafters has stated that reservists are not to be used in fighting terrorism or domestic separatist movements. However, there have been plenty of US reservists deployed to Afghanistan and Iraq over the last 4 or 5 years. The difference here being that the US does not use compulsory military service to boost military numbers.

Being short on detail means that at best one can only speculate. But hopefully the Bill will include benefits such as educational assistance to those who have to enlist, practical skills training aside from weapons handling, and other useful, in the broader community, skills.

There is a public policy possibility here in that the compulsory military service program could be used to fill shortfalls in other Government programs such as education. It would be a little cynical to try and hide Indonesia's unemployment figures by forcing the unemployed into compulsory military service. Yet, a program of this nature could conceivably be used to provide vocational skills, perhaps even re-skilling retrenched workers, for re-entry into the workforce.

Not everyone would be happy that these skills were gained through compulsory military service but from the Government's perspective it is simply killing two birds with one stone!

The idea that all countries, as some researchers have suggested, have compulsory military service is simply untrue. Almost all states have some former of military reserves where the obligation generally is one weekend a month and two weeks a year, but this is not compulsory.

It will be interesting to see how the Draft Bill deals with meeting the military's exacting physical fitness standards. Perhaps compulsory military service may even become a public health issue as compulsory military service may ensure that even the sedentary get some exercise.

May the force be with you (or at least you will be with the force irrespective of what you want!) when you are asking yourself "...not what your country can do for you; ask what you can do for your country."

04 November 2007

Aircraft Safety - The Indonesian Way

The rate that Indonesian aircraft seem to be in accidents generally, and fatal accidents more specifically, should beg some pointed questions to the officials tasked with ensuring that the Indonesian sky is safe. Yet, within the last week there has been another incident where a Mandala flight crash-landed in Malang, no fatalities which is a blessing for those on board and their families, but all the same another crash statistic for Indonesian airlines.

The statistics do not lie. Indonesia's air safety record is woeful, perhaps not as bad as some other nations, but to say that "we're not the worst" is surely no saving grace or sustainable claim to fame. On an average of one million flights in Indonesia there are 3.77 fatal accidents. The world average is a mere 0.25. A statement to the effect that this is "unacceptable" is tantamount to travellers in Indonesia being short-changed by the airlines they fly with and the Government agencies tasked with supervising them. Everyone knows that it is unacceptable but what are the airlines and the Government going to do about it?

The reality is a simple one for an archipelagic nation such as Indonesia, air travel is a quick and easy way of lessening the distance between islands. This makes the movement of goods and people easier, and perhaps even more importantly for a nation that focuses so much on nationalism and demands patriotic pride from its people, then safe and efficient air travel would really give credence to the idea of "unity in diversity" as safe and efficient air travel would allow greater unity to be fostered among a diverse range of people.

Even though this is about aircraft safety, it could easily be about transport safety in general. Those who no longer fly because of the woeful safety records of Indonesia's flag carrier, Garuda, and its myriad of budget carriers have to choose between ferries for inter-island travel and trains for travel on Java, and local buses in just about all other places.

Just during this past Idul Fitri holiday there has been a fatal ferry accident. The ferry industry is both figuratively and literally overloaded. It is common practice for official passenger manifests not to reflect the total number of people on board. Trains and buses fare no better in the accident sweepstakes that seems to be travel in Indonesia.

Certainly, if nothing else, this horrendous safety record should give pause for concern. The ball is clearly in the Government's court. Simply, to use a tennis analogy, the Government must return serve or let itself be 'aced'.

Time will tell!

02 November 2007

Indonesian Presidents - A Question of Ethnicity - A Storm in a Tea Cup

The Vice-President is in full campaign mode, some might argue he has been since the 2004 election, as he and Golkar make a move on the Presidency. Despite the professions of loyalty and acceptance of the current President, it is clear that Golkar is positioning itself to secure the biggest parliamentary majority and return one of its own to Chair Number 1 in 2009. Will they succeed, well that is another blog entry for another time.

The point of this blog is to give nothing but a superficial analysis of the comments attributed to Jusuf Kalla at a discussion held on 1 November 2007 on the first three years of the Susilo Bambang Yudhoyono - Kalla Government. These comments were simple but always prone to stir debate in anyone that has not really been paying attention to constitutional amendments. And Kalla himself was careful to premise his statement on the opinions of people that say the President must be Javanese are being discriminative and not the law - the law says something different to be sure!

Kalla merely said that any prospective president can be of any ethnicity and they just do not always have to be Javanese - true. This would be good for Kalla being from Sulawesi. But when it is all said and done this is just a case of the Vice-President stirring the pot. For what purpose, who knows, only he can answer that! Although in the era of transmigration you could be of Javanese ancestry but have never lived on the island of Java. In this regard you could also be Indonesian of Chinese ancestry and your family might not have lived in China for 5, 6, 7 or more generations. The same goes for Indonesians of Arabic or Indian ancestry who have a long and storied history throughout the archipelago.

The issue revolves around Article 6(1) of the 1945 Constitution of the Republic of Indonesia, which in its simplicity states that the President must be a native Indonesian. In Indonesian, "Presiden ialah orang Indonesia asli". The debate about whether 'asli' means native, original, indigenous, or something else would seem to be all but settled with the third series of constitutional amendments confirmed on 9 November 2001, which amended this very Article.

But exactly what is a native Indonesian. Is this an Indonesian by birth or it this someone who is indigenous to the archipelago that is now Indonesia or is it someone indigenous to the island of Java? Pressing questions indeed as we head into another presidential election or not!

Because if we return to the constitutional amendments, there were four of them (if you are interested, they can be accessed in Indonesian here or a complete unofficial English translation here), the third of these is the most critical to this non-debate. The third amendment defines native Indonesian as any Indonesia citizen who has been a citizen from birth, who has not held any other citizenship of their own free will, has never betrayed their country, and is of sound mind & body in order to perform the duties of President or Vice-President.

Case Closed!

Native Indonesian is clearly anyone born here. So, the debate about whether the President has to be Javanese or not is a non-debate. As are the unnamed personal opinions to which the Vice-President refers. The President can be any Indonesian born in the Republic, and those born outside of it to Indonesian parents, irrespective of whether your family ancestry is Arab, Indian, Chinese, or Australian, or anything else for that matter!

The reality is that the the island of Java supports the largest number of Indonesian citizens and the conspiracy theorists will tell you that when all the Javanese get together and are convinced of their inherent right that the President must be Javanese then it is a foregone conclusion that the President must be Javanese.

I guess if you do not have anything more serious to focus on then a conspiracy theory is always a fun diversion!

It is not one's ethnicity that is important but rather one's ability to 'network' in the lion's den (or perhaps more aptly a traders' market) that is Indonesian politics. The only thing in Kalla's way is his ability to network enough votes and his appeal to the masses. The beauty of direct presidential elections is that if you are teflon-coated and have minor party support there is no reason why you cannot sit in Chair Number 1.

That said, the small parties still understand the reality that they have to court the support of bigger parties and that is why the current President and Vice-President fit this picture.

Viva Democracy!

Constitutional Rights - Only if You are Indonesian

The Constitutional Court handed down its Decision in the 'Death Penalty' case. Many were hoping for a watershed or seminal moment in Indonesian legal history and in many respects perhaps it was but in most respects probably not in the way many had envisaged and hoped for.

Cutting to the chase the Court upheld the constitutionality of the death penalty in Indonesian law. Simply, the arguments submitted that the death penalty was unconstitutional because it breached a constitutionally guaranteed 'right to life' under Chapter XA of the 1945 Constitution was rejected. Chapter XA is in essence a 'Bill of Rights' and incorporates many of Indonesia's human rights obligations under international conventions.

Chapter XA is interesting as it uses the Indonesian term 'setiap orang' which in a literal translation means all people. This is an inclusive term and can be distinguished from the more exclusive term 'warga negara Indonesia' or Indonesian citizen. Therefore, a reasonable interpretation of Chapter XA is that the provisions apply to all persons legally resident in Indonesia and not just Indonesian citizens. This can be distinguished from Article 51 of the Constitutional Court Law (Law No. 24 of 2003 if you're interested?) which explicitly refers to Indonesian citizens. The relevance here is that only Indonesian citizens can submit claims for judicial review of legislation that potentially is in conflict with the Constitution. In other words you must be Indonesian to enjoy the ability to prove legal standing at the Constitutional Court.

The application for review by the members of the Bali Nine who have been sentenced to death and who were hoping to have the death penalty declared constitutionally invalid are clearly not Indonesian citizens. But nonetheless would seem to enjoy constitutional protections under the provisions contained in Chapter XA, a real dilemma.

Now, this is one of those funny in a sadly perverse kind of a way moments. Perhaps the best course of action now is for someone to submit an application to the Constitutional Court to test the constitutional validity of Article 51 which restricts access to the Constitutional Court only to Indonesians where, as this case clearly highlights, there are occasions that the protected rights enjoyed by non-Indonesian citizens resident in Indonesia can be potentially breached. This in essence means there is not constitutional legal recourse for non-citizens. The Chief Justice of the Constitutional Court rightly pointed out that the rights of non-citizens to use the appeals process is no way infringed, simply a non-citizen may appeal their verdicts from the District Court through the High Court to the Supreme Court for both cassation and judicial review, and ultimately where all other avenues fail, they can also seek Presidential clemency or pardon.

The fact that the Constitutional Court upheld the validity of the death penalty is not really a surprise, the fact that it was a split decision was perhaps more of a surprise. The reason is that the death penalty is not expressly prohibited under international law. To suggest that it is misrepresents reality. This is not to say that the death penalty is not wrong. I am most definitely against the death penalty! No one has yet been able to convince me that the idea of an 'eye for an eye' or 'a tooth for a tooth' serves as a deterrent in any meaningful way. Besides recalling the words of a great pacifist and thinker for peace, Gandhi, an eye for an eye does nothing more than blind us to the real truth. I am not convinced that this is a mechanism that ensures law and order. Furthermore, as the Innocence Project and others like it have shown us the death penalty is fraught with danger where it is not uncommon that the innocent are sentenced to death.

So, the point after all this is that non-Indonesians resident in Indonesia have legal rights but they do not enjoy rights to constitutional review. However, in a strict legal sense this means that non-Indonesians enjoy protections under the Constitution but they do not have the legal right to seek judicial review of these rights if they believe that these rights have been breached.

'Such is life' as Ned Kelly would say!