Religious Tolerance, Nah!

Indonesia would be our home if we were not currently residing in the Land Downunder. Yet, a recent story our of Tanjung Balai in North Sumatra has me wondering whether Indonesia is all that it claims to be when it comes to arguing that it practices a moderate form of Islam and that there is a constitutionally guaranteed right to the freedom of religion. To my mind, this piece of news out of North Sumatra suggests that not all religions are equal under the constitution, particularly if they are a minority faith. This piece of news is also indicative of a lack of leadership across all levels of government and the community.

The news relates to a rather large 6-meter statue of Buddha which finds itself sitting atop of a 3-storey temple located in the heart of Tanjung Balai. After a great deal of agitation by a local Islamic group, the Forum for United Muslims, there was allegedly an agreement reached that would see the Buddha moved to a more "respectful" location. More respectful seemingly means out of the eyesight of Muslims. I am not sure that there are all that many Muslims that would be tempted to convert to Buddhism based solely on seeing a large statue of the Buddha, but then again, perhaps the temptation is just too great that it is better to remove it.

However, the longer the statue remains where it is the more likely it is that there will be protests to see it removed with all haste. The local Islamic Community Council seems to think that removing the statue is all about maintaining religious harmony. Perhaps some other minority religions in Indonesia would beg to differ. This is about one religion using its numbers to dominate other religions by forcing compliance and issuing threats. If the situations were reversed and some followers of a minority faith linked together with others and demanded that all local mosques not use loud speakers to make the call to prayer as it disturbed them, what then would the likely outcome be?

Tolerance is a two-way street. It requires the ability to tolerate and be tolerated. Yet, I am not sure this current dispute evidences a two-way street. It seems more likely this is a one-way street where you do as your told or suffer the consequences of your non-compliance.

The cold hard reality here is that Buddhism is an officially sanctioned religion. Followers of the faith have a constitutionally guaranteed right to practice their faith. They also have a right to their religious symbols and deities in order to fulfill their religious obligations.

The government and courts at all levels must do all that they can to protect religious freedom. Unfortunately, another cold hard reality is that populism means that elected officials rarely maintain the testicular or ovarian fortitude that they extol as candidates.

I wonder whether this is another nail in the coffin of tolerance in Indonesia?

Cut Tari and Law No. 1 of 1951...

If something can be sad and funny at the same time, then this is it! Cut Tari made a skin flick. She was seemingly a willing partner in an amateur porn shoot in 2005 with the now infamous ladies man, Nazriel 'Ariel' Irham of Peterpan fame. By all accounts it was amateurish, which considering it was a handycam job, might not be far off the mark. Nevertheless, amateurish or not, it was sure to titillate the masses in Indonesia as getting a good look at the nether regions of celebrities is a pretty solid past time for some.

In any event, it would seem that making a porn film and being in a porn film are not illegal per se. This is true for the 2008 Anti-Pornography Law. Although the arguments being made by Cut Tari's lawyer, the 'I am everywhere you are', entertainment lawyer, Hotman Paris, rely on the inability of a 2008 law being applied retroactively to a sex video filmed in 2005. He has a point. Yet, it would seem that being naked in front of a digital camera probably falls under the indecency provisions (Art. 282) of the Criminal Code.

However, where this gets really sad is that the police and prosecutors are going all out to find laws to try and apply in this case. So, it was back into the archived Statute Books to play a little "pin the tail on the donkey". The end result was Law No. 1 of 1951, an emergency law that was enacted under a provisional Constitution and in 1951 Indonesia was tinkering with the way the Republic was to be governed. Nevertheless, Article 5(3) of Law No. 1/1951 has a nice 'catch all' element to it:

where an act is considered to be a crime, but where there is no relevant article in the Criminal Code prohibiting that act, then customary (traditional 'hukum adat') law can apply.

I wonder if the hukum adat that might apply here has any Sharia elements to it. Then again, both profess to not being able to remember where the film was shot. Maybe it was shot overseas and not even in the jurisdiction of Indonesia?

The cold hard reality for the coppers and the prosecutors here is that if you have to go back to a 1951 law that has not been used for this purpose previously then things are looking a little forlorn on the successful outcomes stakes. Let's face it, the drafters of the 1951 law hardly had amateur sex tapes at the forefront of their minds when drafting Article 5 of that law. It is a real stretch, drawing a long bow, if you prefer, to try an make this stick.

Final points...you really have to wonder why the police and prosecutors are persisting with this case. The again, if the SBY can railroad the DPR into approving a suspect candidate for Chief of Police, and the DPR can see no reason why the man who presided over the, still unexplained and unresolved, murder of Trisakti students in 1998 should not be Chief of Police, then what hope do a couple of amateur porn stars have?

Now for some obligatory pictures of Cut Tari...

Can Women Be Leaders?

I actually read the genesis of what I am about to post in The Jakarta Globe. What I had intended to say was way more confrontational and self-righteous than what follows here. It is so because I forced myself to stand up and walk away. I made a sandwich and drank a glass of juice. This was probably a good thing.

I consider myself a tolerant person, although sometimes I have to wonder, but there are some things that really press my buttons. One of them is the idea that women cannot lead and that this is justified in Islam. There are more than enough examples of poor male leaders throughout history that should make us pause and wonder whether men have any inherent right to call themselves the chosen ones, the leaders of men and women.

Yet, Ridwan Muhammad, Speaker of the Local Biruen Government in Aceh, has been lobbying for the need to change the female Head of the Plimbang Subdistrict, Anisah. To all intents and purposes it is politics as normal for any where in the world; you have those that like the job you are doing and those that think you are woeful. It seems that the woeful ledger is winning out as they have gained the support of Ridwan.

The move to replace Anisah though is not based on her woeful performance per se,but rather because she is a woman. And, at least, as Ridwan sees it, this means under Islam and the brand of Sharia Law (ad I use the term loosely) that Aceh has adopted women are not permitted to lead. Presumably, this is because leading men is not the job of women. Yet, the manner in which Ridwan made his views known by saying that women were "unfit" under the laws of Islam to lead is an affront to all women irrespective of their religion.

So, I wonder, Ridwan, what is it that women are good for in your view? Is it that women exist only to serve the pleasures of men? Is it that a good shellacking in the bedroom to satisfy the needs of men is the intent God had in mind? Is it that women are only good for breeding; the old 'bare foot and pregnant' deal? Are women to be judged solely on their abilities to serve their men, where a woman who can cook, wash, iron and sew gets a higher ranking than one lacking in those essential skills?

I wonder, how does this sort of misogyny and chauvinism support the idea that Islam is about protecting the dignity and rights of women? How is it that the Ridwan alternative is one that promotes tolerance, harmony and acceptance? As an aside, Ridwan, are there no prominent women in the history of Islam that had what might be perceived as leadership roles within the religion or the broader community?

Let's not get too deeply into the religious debate. The point of this post is not to dissect Islam and its views on women, in spite of the issue lending itself to such discussion and debate.

Therefore, just focusing on the legal ramifications in a constitutional sense. Does the special autonomy granted to Aceh allow it to discriminate against women within the perceived framework of the implementation of Sharia Law? My limited understanding of the Indonesian Constitution is that discrimination is not permitted, including discrimination against women.

Maybe this idea that women are inferior to men can become part of the new "Visit Indonesia" tourism campaign?

SBY and a Third Term as President?

Oh dear!

Ruhut Sitompul seems to want to return to his comedic acting roots by suggesting that the Constitution should be amended so that the current two-term limit on presidents can be extended to three terms or more.

The problem I have with this is not amending the Constitution. In a democracy the amending of the Constitution is possibly. There are strict rules in place for how this is done. If they are followed, and this is truly the will of the Indonesian people then so be it.

However, how quickly we forget. Indonesia is only a little more than ten years removed from what was a period of guided democracy under Soekarno, Indonesia's first president, and the ruthless, iron-fisted dictatorship of Soeharto. Both of these periods saw the slaughter of untold numbers of Indonesians. The very power to do this came from the fact that power was quickly consolidated and no term limits forced political change to occur no matter how minimal.

Look, the term limit system is not perfect, one only has to look at Russia and how Vladimir Putin has manipulated the political term limits system to ensure that he remains a powerful force, but that does not make it right.

So, how should we view Ruhut's latest jaunt into controversy? The cynic, or conspiracy theorist, in me says that this is a far more elaborate, and cunning, plan than people and media are giving it credit for. At the moment, most people seem to think that this is just "crazy old Ruhut trying to make a name for himself and get into the papers and on TV."

To the contrary, this could just as easily be the Democrat Party testing the waters for a move to introduce a constitutional amendment to parliament in a move to change term limit laws. By getting Ruhut to put the suggestion out there in the public sphere allows Yudhoyono and the Democrat Party to put at arm's length the statements of Ruhut.

This might seem surprising to some, but it is easier enough to do as Ruhut has always been viewed as the one that might let his mouth get into gear before his brain does. This in, and of itself, is surprising because Ruhut is obviously not a stupid man, this idea aside, so it seems strange to write this off as the ramblings of a crazy old politician with nothing better to do.

Hence, the idea that this may in fact be the Democrat Party, on Yudhoyono's instructions, testing the waters. After all, power tends to corrupt, if you search the annals of Indonesian political media coverage you will uncover plenty of statements to the effect that Yudhoyono only wanted to serve the people of Indonesia and he only wanted to do that for one term. He is now on his second term.

There is no legal harm in SBY doing a constitutionally permitted second term. There is plenty of social harm though, in popularly electing to a second term, a president who talks the talk but cannot walk the walk on corruption, among other problems.

Hopefully, the Indonesian people will react negatively to the idea of SBY doing a third term as president and this little sideshow can be put to bed forever.

Is SBY Fit to be President of Indonesia?

This is a short post. It is not a analysis. It is a question!

The president is supposed to declare a commitment to upholding the provisions of the Constitution. The president is supposed to acknowledge that the Republic of Indonesia respects the tenets of Pancasila as the state ideology. Susilo Bambang Yudhoyono is clearly failing to do this.

The 1945 Constitution of the Republic of Indonesia guarantees religious freedom. In simple terms, Indonesia is a secular state.

A statement from the president encouraging tolerance is not commensurate with his responsibility in upholding and defending the Constitution. He must make specific reference to the recent attacks on Christians practicing their faith in Bekasi. He must publicly rebuke the Islamic Defenders' Front (FPI) and any others that violate the basic tenets of the Constitution.

Finally, the president must take responsibility for the governance of the Republic. If he is not up to that task then he should step aside and let someone willing to fight for freedom and democracy have an opportunity to ensure that all Indonesians enjoy the freedoms guaranteed to them!

Indonesia is for all Indonesians, and not just a lucky few.

Mr. President, do you have the courage to step up and do what you were elected to do?

Shame, shame, shame!

Aceh and Stoning Adulterers...

The previous Aceh Regional Parliament passed a Qanun on Jinayat which included provisions relating to the stoning to death of adulterers. I have written a more detailed post on the provisions of the regulation here. This piece of 7th Century inspired legislation was passed in the dying days of the previous parliament's existence. However, a new more moderate parliament has been elected and the newly elected members had promised to revisit the regulation and amend it once they had the power to do so.

The new parliament has been installed. It is now a matter of urgency and one of credibility that the new parliament place the amending of the Jinayat regulation. Simply, it is time to ante up and do what must be done.

Some have argued that Aceh is a province that enjoys special autonomy and has special rights to self-government and the enactment and implementation of Shariah based laws and regulations. However, it is not the case that the regional regulations in Aceh can be in conflict with the 1945 Constitution of the Republic of Indonesia. Special autonomy or not, Aceh is still a province of the Republic of Indonesia, and this means that the 1945 Constitution still applies.

Stoning to death is an unusual, cruel, degrading, and inhuman punishment. It is a form of torture of the worst kind. To allow a regulation of this nature to stand unchallenged reflects badly on Indonesia as a whole. Stoning is not an acceptable form of punishment. The reality is that people that live in glass houses should not throw stones.

Transmigration in Indonesia -- Amended Regulatory Framework...

This is something that was written for en.hukumonline.com. The original can be found here.

The era of “reformasi” was the spur for many changes in Indonesia, and this includes the drive to amend the 1945 Constitution of the Republic. There have been four amendments to date. These amendments were enacted in the period between 1999 and 2002. Furthermore, the amendments have since required that other legislation (laws and regulations) also be amended to ensure that those pieces of legislation comply with the amended Constitution.

The previous law on Transmigration Law No. 15 of 1997, has been amended in order to comply with the Constitution as it now stands, particularly with respect to matters of regional autonomy.

The Amendment Bill on Law No. 15 of 1997 was passed by the House of Representatives (Dewan Perwakilan Rakyat / DPR) and is currently awaiting the signature of the president before it can be promulgated as law. The amendments focus almost exclusively on the decentralization of certain transmigration related authorities from the Central Government to the relevant Regional Governments. The amendments also endeavor to create a more conducive transmigration sector; conducive to investment.

Articles 7 – 9, 13 – 15, 25, 26, 29, 30, 32, 33, and 35 have been amended, as has the Title of Chapter VII. Additionally, Chapter IX and Article 34 have been repealed. Finally, three Chapters have been inserted and replace Chapter XI, specifically: Chapters XA, XB, and XC.

One of the most notable changes is that the authority to: determine, establish, and develop areas for transmigration has devolved to the relevant regional governments. This is notable for two reasons; this places greater administrative control on the regional governments themselves to be pro-active in providing support for the transmigration program and accountability.

In effect, the amendments would provide the opportunity to enterprising regional governments to either go it alone or enter into private / public partnerships to develop and exploit their regional potential by enhancing opportunities for transmigration. Whether this eventuates remains to be seen. Nevertheless, the potential for such a development is clearly available under the provisions of the amended law.

The new law provides for sanctions to be imposed on anyone who breaches the prevailing provisions. This is irrespective of whether the breach is conducted by a government official, a business entity, a transmigrant, or some other individual or group. Generally, the sanctions provide for:

• Oral / written warnings;
• Cancellation of licenses (for business entities), transmigrant status (for transmigrants), and / or the Minister of Labor and Transmigration (for groups of people); and
• Criminal sanctions. Not all of the amendments are significant in terms of size.

For example, the provisions of Chapter VIII have been amended to merely change one word; “guidance” (pembinaan) to “development” (pengembangan). Nevertheless, there is seemingly a significant difference in terms of what is required between providing guidance and facilitating development. Yet, the amendment is just one word.

The bill comes into immediate force once it is promulgated. Enactment requires the signature of the President. If the President fails to sign the bill into law then the bill will self-enact after 30 days pursuant to the 1945 Constitution.

HIV / AIDS, Microchips, and Papua

The Papuan Provincial Government has drafted a Regional Regulation that includes an article that requires certain people living with HIV / AIDS to be micro-chipped. This seems to fly in the face of other measures that Indonesia has taken to reduce the stigma associated with being HIV positive. Indonesia has laws and regulations in place that make it illegal to discriminate against people living with HIV / AIDS in the work place and the general community.

The article defines "certain" people as being those that are "aggressive". Aggressive in the context of the regulation are those that are aggressively seeking out sexual partners and presumably spreading the virus without informing their prospective partners of their HIV status.

I am not sure how the microchips are going to prevent the aggressive individuals that are so micro-chipped from having sexual intercourse or infecting others. At best the microchips will allow authorities to track movements and general locations where these aggressive people are. I just do not see how the microchips will alert a potential victim to the HIV status of the micro-chipped person.

The idea of chipping aggressive people is just so subjective in nature that it is difficult to see how it can possibly work without falling foul of the constitutional provisions prohibiting discrimination. Who is to decide what constitutes aggressiveness and how is aggressiveness to be measured?

There is something that seems to be inherently wrong in tagging people within certain groups. I wonder how long it will be until there are regional regulations that require the micro-chipping of people from marginal groups such as the homeless, minority faiths, gays and lesbians, expatriates, to name but a few.

I am sensing that there will undoubtedly be plenty of concerned citizens and NGOs that will band together to challenge the validity of the regional regulation. Tagging people is just wrong, at least, to my mind.

The Pornography Law -- A Dead Document?

The Jakarta Post recently reported that Constitutional Law Expert, Irman Putra Sidin, saying, "How can we expect the law to be implemented when people and officials oppose it? Who's going to enforce it? It will end up as merely a dead document," based on the fact that at least four provinces were going to actively oppose the law and refuse to enforce it. Those provinces are Bali, North Sulawesi, Yogyakarta, and West Papua.

The rationale for this position is that if the law is not implemented nationwide then can it be valid anywhere. I would have thought that once the law was passed by parliament and enacted as law then it was the law of the land. Therefore, in a republic like the Republic of Indonesia, the law would apply everywhere.

A more interesting argument would be does the refusal to implement the law amount to the beginning of an act of secession? How far do the provinces want to push this? What sanctions could the State impose on rogue provinces that refuse to enforce state laws and regulations.

In fact this should be read as a preliminary movement towards seeking independence from the Republic of Indonesia. Quite clearly the intent of West Papua is to secede from the Republic if they are required to enforce the law. Andrikus Mofu, spokesperson for the West Papuan delegation said the following, "We will inform the international community of our aspiration and our intention to separate from Indonesia." This seems to leave little doubt where the West Papuan intentions lay.

The most likely course of action will be a Constitutional Court challenge to test the binding nature and legality of the provisions. The definitions of pornography and the manner that pornography is to be determined is arguably loose. Nevertheless, this is an issue that the Court will be asked to determine.

The reality is the laws of the land are to be applied and all are to be equal before the law. Special dispensation in one province compared to another means that there is no equality before the law and this is more likely to lead to problems than the enforcement of the law.

Of all the things that could trigger the disintegration of the Republic it is interesting that it is the Pornography Law that is being talked about as being this trigger.

The Death Penalty in Indonesia

The family of Imam Samudra are intending to lodge a complaint in the event that he is executed. The complaint will be based on a claim that he has been murdered. There are interesting legal arguments relating to state sanctioned murder.

My personal view is that it is murder, it is a willful killing authorized by the state, and it is wrong. I am not arguing that Indonesia does not have the right to use the death penalty. The argument is a loser as international law permits a death penalty state to continue to use the death penalty. I am arguing on moral grounds that the death penalty is wrong. I am arguing that two wrongs will never make a right. Simply, an eye for an eye makes the whole world blind. I am arguing it is not a deterrent to crime.

Yet, with all those things said, it is unlikely that any claim submitted by Luluk Jamaludin (stroking his goatee in the photo), the younger brother of Imam Samudra, will have legal legs. The Constitutional Court has ruled that the death penalty is a valid form of punishment that does not breach any right to life protections provided for in the 1945 Constitution of the Republic of Indonesia. Furthermore, the Constitutional Court has also ruled that execution by firing squad is not cruel and unusual punishment.

I just do not see a claim making any headway in a system that seems to be aligned in favor of state sanctioned killings.

Race Politics -- Personal Musings

I have been having one of those mornings where I have not been able to sleep. In order to avoid doing work, I surf the Internet. I have been reading a little about race politics, playing the race card, and whether the US is a post-race nation. This got me thinking, probably no surprise to those that know me best, about how this debate would play out in Indonesia.

The Indonesian Constitution of 1945 would seem to support an argument that any Indonesian citizen born in this country, Indonesia, has a right to become its president. The Indonesian term is "orang asli" which loosely would translation to original person, and herein lies the problem. Does the term refer exclusively to indigenous Indonesians or does it also include the important and vibrant communities that trace their respective ancestries through to China, India, and the lands of the Middle East? Even more interestingly is does it include Indonesians who trace their ancestries to European roots who were born and raised in Indonesia from birth?

There has traditionally been a feeling that the highest office in the land was only opened to pribumi or indigenous Indonesians. My problem with this is that Indonesia is a socio-political construct and as such who is indigenous in this sense? Some have even gone as far as to say that one must be Javanese to gain the highest office. Unfortunately, for those that believe this, Soeharto chose one B.J. Habibie to be his Vice President. When Soeharto stepped down and Habibie became President these arguments were no longer valid. Habibie was was not Javanese.

The point of posting is not to write a 50-page tome on the merits or lack thereof of race-based politics. I can publish that research in a journal if it is good enough! Rather my intent here is in light of recent violence between religious followers and between ethnicities within Indonesia, perhaps an evaluation of race relations and politics is warranted.

I feel that Indonesia must sooner or later stand up and stare down those who flame the tensions simmering within Indonesian communities. This stand has to be one for tolerance, acceptance, and unity.

Many will argue that Indonesia is about being diverse but unified (or as some claim fragmented but one) yet this is hardly played out in real life. There must be a time where Indonesians identify not as pribumi and non-pribumi, or as Arab Indonesians, or Indian Indonesians, or Chinese Indonesians, but rather as "Indonesians". Maybe there is a need to return to a more literal understanding of the ideology of Pancasila (Five Principles).

After more than 60 years of independence Indonesia is still squabbling about race, about religion, and about tolerance! The founding fathers and mothers of this nation are undoubtedly rolling in their graves!

Religious Freedom in Indonesia

Religious freedom in Indonesia or more specifically the lack of it is about to garner some attention at the United Nations Human Rights Council Plenary session currently underway in Geneva. I have written on religious freedom and intolerance in Indonesia previously so feel free to search through the blog to find these postings (if you're interested). However, it is clear that the issue of religious freedom is going to be an issue that at some point in time the Indonesian government is going to have to address. If for no other reason than maintaining social harmony or more specifically to be true to the national motto of "unity in diversity".

Simply, this concept of unity in diversity that is enshrined in the State ideology of 'Pancasila' or the Five Principles is not something that the Indonesian government seems to give much weight to. The first of these principles is the belief in a supreme God. Too bad for any animist tree or mountain or big stone worshippers. Unless of course you can characterize a tree as a supreme God -- good question! The first principle here seems to be tailor-made for the development and expansion of sects with slightly different sets of beliefs.

One of the bigger religious tolerance or intolerance issues to arise has been with regard to the Ahmadiyah sect. This is an Islamic sect that had slightly different interpretations regarding who was in fact the last prophet of Islam. Obviously, this is sure to be controversial but as the Indonesian Council of Ulemas (MUI) also determined in a fatwa it issued, ultimately heretical! The issue of the fatwa led to some outbursts of communal violence and attacks against sect members.

The issue here is whether or not the Indonesian Constitution guarantees freedom of religion. The simple answer here is that it does -- yes! Although arguments can be made that despite the guarantee there are no real protective mechanisms built into ensure that this freedom to practice one's faith is maintained in a practical sense. So, despite the probable repercussions of the action it must take, the State needs to come out and say that with all due respect to the MUI (usually translated as no respect at all) that Ahmadiyah and its followers have a constitutional right to practice their faith. However, and somewhat unfortunately, the government decided to accept the MUI interpretation and called in the attack dogs and put the sect under surveillance.

Heresy is a crime in Indonesia, at least in the sense that a creative interpretation of the Criminal Code provisions, Article 156(a) for example, would allow cases to be brought before courts where a different interpretation of the faith is developed and practiced.

Bottom line -- When will the government stand up and be counted on this argument is any one's guess. But the most likely scenario would be not before there was much more widespread violence involved and a real risk to the stability of the broader Indonesian community.

When it is all said and done Indonesia is still a country that burns textbooks that offer a different view of accepted national history, such as the 1965 coup attempt, so if you cannot face your past the ability to face your future is also in question! But, alas, this is a post for another time.

Peace, Love, and Tolerance

Religious intolerance has reared its ugly head in West Java with the continuing attacks on the Ahmadiyah sect. This attack destroyed a Mosque and houses by burning them to the ground. The Indonesia Ulema Council (MUI) has declared the sect heretical and issued a fatwa or edict stating that fact.

I have posted earlier on this issue.

Yet, despite pleas by the Vice President it seems that people just do not get it!

The Indonesian Constitution guarantees freedom of religion. Perhaps this was, in hindsight, a mistake that slipped through the heretical net during the post-Soeharto euphoria of greater democratic and social freedoms. But mistake or otherwise it is in the Constitution and it is high time the police stepped up to the plate and acted in the manner they must. The right to practice one's faith is protected and therefore must be free form attack by others.

The MUI must also make it explicitly clear in its fatwas that even though the Ahmadiyah sect has been declared heretical, people cannot take the law into their own hands and hand out justice as they deem necessary.

If Indonesia is the law state and a state based on order and where human life is valued, it is time to prove it. The legal framework can deal with heretical sects and does not require the vigilante justice that we are seeing now. Even so, this particular issue needs to be characterized as a public law and order issue and not a religious one.

The Constitution appears to provide a blanket right to freedom of religion. Islam is not the only religion that has issues regarding sects or the development of different faiths from a common faith. It was not so long ago that the current pope suggested that Protestant churches were not real churches.

This is a chance for Indonesia to show how much it has matured and how much it values the greater democratic freedoms its citizens enjoy since the fall of Soeharto - Take It!

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!