Malaysia, Caning, and Beer -- Part IV

It would seem that being sentenced to a good ol' caning, wanting to get caned, and actually being caned are very different things.

It is interesting that the Malaysian Prime Minister, Najib Razak, has entered the fray on this one. He has suggested that the Singaporean and Muslim model, Kartika Sari Dewi Shukarno, not be quite as willing to accept her fate. According to Razak, although he does not want to interfere with the imposition of the sentence or the role of the Sharia Courts, he believes that not all avenues of appeal are yet closed.

The PM is of the opinion that the authorities are "sensitive" to her plight and the implications of the sentence. and therefore she should appeal. I guess there are a number of ways that can be interpreted, and the cynics among us might lean towards the PM interfering in the judicial / justice process. Then again, maybe the cynics would not see it this way.

Shukarno was granted a reprieve as the Sharia Courts and the authorities decided that the holy month of Ramadan was not the opportune time to be caning a young mother of two for drinking beer. Hey, seeing it is Ramadan and a month of forgiveness, how about just vacating the sentence and replace it with a warning that in essence is a slap on the wrist and some choice words about re-offending.

However, I am of the opinion that she wants to get caned. Whether she wants to get caned because it is publicity and any publicity is good publicity, I am not going to speculate. But, she is calling a good bluff on any front by challenging the authorities to get the deed done.

Most people would have appealed the sentence as a matter of course, Shukarno has not. Instead, she has argued that if it is to be done and the authorities are really doing it as a means of educating other Muslims of the ills of alcohol and drinking, then the caning must be done in public. This makes sense to me.

The waiting game continues.

Prita Mulyasari -- Defamation -- To Be Retried...

This is unfortunately one of those cases where one just knows what is going to happen before it actually happens. It would also seem that the Banten High Court reads The RAB Experience, but this would not seem to be the case for Prita and her legal team.

The Banten High Court has ordered the Tangerang District Court to retry the defamation case against Prita Mulyasari. This may have come as a surprise to some, but the reality was that in a strict legal sense the decision could not have been any other way. Simply, the Tangerang District Court erred in the manner in which it dismissed the indictment against Mulyasari (news).

The Banten High Court held in its decision to send the case back to Tangerang for trial was that the decision of the Tangerang District Court was unlawful. In essence, this means that the legal reasoning provided to justify the dismissal of the case in the first instance was wrong. The Chief Judge of the Banten High Court, Sumarno, was unequivocal in stating that the Tangerang District Court erred in its judgment.

The debate on the legal reasoning can probably be found in lots of places. However, I wrote about it here and here. However, although the earlier comment about the judges of the Banten High Court reading The RAB Experience was somewhat tongue in cheek, the legal reasoning of the panel of Banten High Court judges explicitly stated that the error of the Tangerang District Court judges was the belief that the Information and Electronic Transactions Law does not come into force until 2010.

The lawyer for Prita Mulyasari, Slamet Yuwono, might be keen to test the defamation provisions himself, as he went on the record to say that, "... I just hope that the high court judges were not compelled by anything other than legal considerations." Ah, Slamet, compelled by what exactly? A small fee from the Office of the Public Prosecutors or the Omni International Hospital? Unfortunately, Slamet, refused to elaborate on what the suggestion was.

The Information and Electronic Transaction Law is contentious. It is contentious not because of the date the law comes into force. It is not contentious as to whether the definition of defamation is clear or not. It is not contentious because the Law provides a two-year window for subordinate or subsidiary legislation to be put into place to give effect to or clarify certain articles. However, it is contentious for the simple reason that Indonesians are currently engaged in a debate about the validity and usefulness of criminal defamation provisions in any law.

The contentious nature of the Law is whether criminal defamation is a means to an end. That is, is the Law a means of stifling legitimate free speech and expression? Further, and perhaps even more important to some, is whether this case highlights the way in which big business can bury consumer complaints about the services received by the consumers themselves?

A quick read of the Letters to the Editor pages of most Indonesian newspapers will see Indonesians writing letters of complaint about one thing or another. Usually about the notoriously bad service provided by banks and financial institutions, and quite often this is to do with credit cards. What the Mulyasari case has shown to date is that big business no longer need to respond to complaints but rather use their vast financial reserves to bankrupt their customers or at least use the threat of doing so.

Going forward. The Tangerang District Court now has no choice but to revisit the Mulyasari case and hear the arguments from both sides. The only way that Mulyasari is victorious here is if her legal team can prove that what was written was not defamation in the manner in which defamation is defined in the Information and Electronic Transactions Law. If they can then the Court can once again dismiss the case and Mulyasari will be free to go on about her life.

Nevertheless, and at the risk of raining on the parade, this is a test case and no matter what the outcome of the retrial, it seems clear that both sides would be likely to appeal if they are on the wrong side of the verdict. This is a case that is going to be tied up in litigation for a good while longer yet.

That said, the only way this would end quickly is if Mulyasari gets the verdict and the Office of the Public Prosecutor in Tangerang declines to appeal the verdict. Judging the performance of prosecutors to date, it would seem that they are intent on seeing this one through to the bitter end. They want a conviction or they are going to die trying.

Prita Mulyasari -- The Case Continues...

The Prita Mulyasari case is an interesting one. It is interesting for a number of reasons. First, among these, is the necessity for criminal defamation in Indonesia. Second, was this the right case to test the those criminal defamation provisions. Finally, did the Tangerang District Court err in the manner in which it dismissed the indictments which set Prita free?

I noted in an earlier post that the manner in which the indictments were dismissed left the prosecutors no alternative but to appeal. The reason is simple, the judgment sets a bad precedent. The idea that a law does not come into force until all of the subsidiary or implementing legislation is in place is clearly not the case in Indonesia. The judges in this case have erred in the application of the law.

Even more so when one considers that the article under which the indictment was issued does not require any subsidiary legislation to be effective. This really was a case of putting the cart before the horse. Ultimately, this undermines legal certainty rather than reinforcing it.

Funnily enough when confronted with the fact that the Tangerang Office of the Public Prosecutor were going to appeal this to the High Court in their pursuit of a conviction, Prita is alleged to have said the following, "Is it the prosecutors' personal problem?" I wonder!

Prita's lawyers from the firm of OC Kaligis have stated that if the High Court accepts the appeal, then this would set a bad precedent. I am not sure how it sets a bad precedent as each case is judged on its merits. If the judges believe their is merit in the appeal then that appeal must be granted leave for the appeal to be heard. Prita's lawyers went further to suggest that if the judges accepted the appeal then this is indicative of their arrogance.

In my mind, if the prosecutors did not appeal and the judges did not accept the appeal, then I would argue that both had erred in their duties to the larger community. It is unfortunate that Prita is going to end up as a pawn in this struggle. But, the reality is that the judges fell victim to public outcry and their legal reasoning for dismissing the case is not sound.

The judges would have been better to allow Prita's defense team to present their case and then agree with the submissions of the defense and then dismiss the case because the elements of defamation had neither been made out nor had the prosecution presented sufficient evidence in support of the indictment. And, finally, the defenses to the indictment were made out.

If the judges had done this then Prita would be a free woman and not worrying about an appeal.

I have made the arguments for and against the prosecutors pursuing this case in other posts and they do not need repeating here. If our interested follow the link.

Amnesty International Appeal

Amnesty International has launched an appeal to see the lives of Amrozi, Samudra, and Mukhlas spared from the firing squad.

The appeal is attached in full.

AI Index: ASA 21/020/2008 16 October 2008

INDONESIA: Amrozi bin H. Nurhasyim (m), Ali Ghufron alias Mukhlas (m), Imam Samudera (m)

Amrozi bin H. Nurhasyim, Ali Ghufron and Imam Samudera, who were convicted of involvement in the 12 October 2002 bombings on the island of Bali, which killed 202 people and injured a further 209, are facing imminent execution by firing squad within the next week.

In January 2008, police and court officials informed the three men that their renewed demands for a second judicial review had been rejected. The men appealed against this decision, but on 17 July the Indonesian Supreme Court rejected this appeal and announced that they had exhausted their right of appeal, stating only one judicial review is permitted.

The executions were due to take place in September, but were delayed for the holy month of Ramadan. Jasman Simanjuntak, spokesman for the Attorney-General's office, stated on 14 October that the date of execution will be announced on 24 October. However, as executions in Indonesia are usually carried out in the early hours of Friday morning, and the date of execution is never normally announced in advance, Amnesty International fears that the announcement will simply confirm that they have already been executed. Amnesty International is also concerned that the men will be executed despite their outstanding petition to the Constitutional Court, alleging that the method of execution by firing squad amounts to torture.

Amrozi bin H. Nurhasyim, Ali Ghufron and Imam Samudera were sentenced to death by the Denpasar District Court in 2003. The law they were convicted under was brought into force in 2003 and introduced the death penalty for 'terrorist' acts, and allowed for those involved in the 2002 bombings in Bali to be tried retroactively. Under international law (Article 15 of the International Covenant on Civil and Political Rights- ICCPR) and the Indonesian Constitution, a person cannot be tried under legislation brought in after the incident took place.

A pardon from President Susilo Bambang Yudhoyono is extremely unlikely. All three men have stated that they will not apply for Presidential pardon. The President has also previously indicated in a television interview that he will not give clemency and will allow the process to be seen through to the end.

BACKGROUND INFORMATION

Death sentences in Indonesia are carried out by firing squad. The person under sentence of death has the choice of standing or sitting and of using a blindfold or cover for their head. Firing squads consist of 12 people, six of whom are supplied with live ammunition and six whose guns are loaded with blanks. The squad fires from a distance of between five and 10 metres.

To Amnesty International's knowledge, at least 107 people are believed to be under sentence of death in Indonesia. Eleven of these were convicted and sentenced to death in 2007. Indonesia has executed seven people since 26 June 2008.

In 2006, Indonesia ratified the ICCPR, which states that "every human being has the inherent right to life." However, the Indonesian authorities did not authorize ratification of the Second Optional Protocol to the ICCPR, aimed at the abolition of the death penalty.

RECOMMENDED ACTION:

Please send appeals to arrive as quickly as possible, in Bahasa Indonesian, English or your own language:

- calling for the death sentences of Amrozi bin H. Nurhasyim, Ali Ghufron alias Mukhlas and Imam Samudera to be commuted;
- expressing concern that the Law on Combating Criminal Acts of Terrorism, under which these men were sentenced to death, was applied retrospectively to include all those involved in the Bali bombings, violating international law and the Indonesian Constitution;
- calling on the Indonesian authorities to commute all death sentences in Indonesia;
- recognizing that Indonesia has a right and responsibility to address serious crime, and expressing sympathy for its victims, but pointing out that there is no clear evidence that the death penalty is an effective deterrent;
- calling on the authorities to sign and ratify the Second Optional Protocol to the ICCPR and establish a moratorium on executions, as a first step towards the abolition of the death penalty as advocated in the UN General Assembly Resolution of 18 December 2007.

APPEALS TO:

Please remember Indonesia is 6 hours ahead of GMT, and fax machines may be switched off outside of office hours.

President
President Susilo Bambang Yudhoyono, President RI, Istana Merdeka, Jakarta Pusat 10110, Indonesia
Fax: + 62 21 345 2685
+ 62 21 526 8726

Salutation: Dear President

Attorney General
Mr. Hendarman Supandji, Jaksa Agung, J. Sultan Hasanuddin No. 1, Kebayoran Baru, Jakarta, Indonesia
Fax: + 62 21 725 0213

Salutation: Dear Attorney General

COPIES TO:

Governor of Bali
Governor Dewa Made Beratha
Jl. Basuki Rahmat Renon Denpasar 80361, Bali, Indonesia
Fax: +62 361 236 037

Salutation: Dear Governor

and to diplomatic representatives of Indonesia accredited to your country.

I am against the death penalty.

Too Fat To Be Executed?

This is not necessarily a story I have been following closely, but it is a story that has some interesting legal implications. I have written about this particular case here.

Richard Cooey is a convicted rapist and murderer. These are charges that he has not denied. He was convicted of raping and murdering two young women in 1986. However, as he was waiting on death row in Ohio he also gained a considerable amount of weight. I guess sitting around 23 hours a day doing nothing much in one's cell could lead to a weight problem. Perhaps prisons need to work out how to give death row inmates more time for physical exercise. He weighed in at an impressive 125kgs.

Cooey had claimed that his obesity would mean that a lethal injection was tantamount to cruel and unusual punishment and as such prohibited by the provisions of the US Constitution. The other claim that Cooey's lawyers were arguing was that Cooey was taking a medication that would adversely impact on the effectiveness of the lethal injection drugs and cause him to suffer unnecessarily.

The appeal to the Supreme Court was denied by Justice Stevens. Justice Stevens is one of the more liberal justices of the current Supreme Court.

Simply, executing overweight or obese people is no less constitutional than executing death row inmates living within the "healthy" range, at least, as it relates to weight.

OJ Simpson -- Life in Jail?

OJ Simpson will be remembered by most as the bloke that got away with murder. This is in spite of stellar athletic achievements such as winning the Heisman Trophy as the best football player in the college ranks and his pro-football career. It is also in spite of a not so stellar movie career although he was known for his work in movies too.

In a trial that played out with much less fanfare than his murder trial, OJ Simpson and his partner in crime, Clarence Stewart, were found guilty of armed robbery and kidnapping. These charges and now the conviction hold the possibility of a life in jail for Simpson. Many might argue it is about time.

The sentencing is not listed until 5 December 2008. The judge, Jackie Glass, rejected a bail application so it seems that Simpson is destined to spend the time from now until sentencing in jail. The defense has indicated that they will be lodging an appeal. It will be interesting to see what grounds they intend to advance in support of the appeal.

It seems that Simpson is going to pay a high price for his notoriety and his stupidity in being part of an armed robbery to reclaim sports memorabilia from a Las Vegas hotel room. If someone has stolen something from you and you know where it is then it would make sense that you call the local law enforcement officers to come in and take care of it. Most people would not think to form a posse and then take the law into their own hands.

This case turned with the testimony of Simpson's cohorts in the crime. Four of the posse turned State's evidence and struck plea deals and testified against Simpson. The provided their testimony to police long before any of them struck lucrative media deals to spill the beans publicly on Simpson. The defense however tried to paint the four as money grubbing hangers on looking to capitalize on their infamy in a financial way.

It seems that Simpson will do jail time this time around. Many will be hoping for a lengthy jail term. I guess we will find out on 5 December 2008 how much time. This might not be the justice that the families of Nicole Simpson and Ron Goldman were looking for, but one hopes that there is some small degree of relief for them that Simpson may finally be going to jail albeit for another crime.

Bali Bombers -- More Appeals

It is a great and perhaps bitter irony that the Indonesian courts continue to entertain the endless appeals that these self-confessed criminals lodge or have lodged on their behalf. If they truly were keen to become martyrs to the cause then they would not have too much riding on the method of their execution.

The latest appeal seeks to have the manner of execution changed from a firing squad to a beheading as this is less cruel. The lawyers for Amrozi, Imam Samudra, and Mukhlas have challenged the firing squad as being an inhumane method of execution. These three terrorists did not give much thought to the humanity in the manner of their execution of 200 plus innocent civilians. So, this begs the question, "why are the courts continuing to entertain these appeals and why doesn't Indonesia just get on with the show and execute these felons?"

If they want to be beheaded then so be it. I would think that there would be plenty of people lining up to take responsibility for swinging what would hopefully be a blunt sword.

I have written on this many times before, but it never ceases to amaze me that the judicial process when it comes to these three is bending over backwards to accommodate their every whim. Yet, the Poso Three were never afforded such appeal opportunities. I wonder if a Christian death row inmate could get their lawyer to lodge an appeal saying that the firing squad was unconstitutional and inhumane and that a crucifixion would be a more religiously acceptable means of execution?

For the victims and their families -- the process is long and drawn out but judgment day is nigh for these mass murders. Patience is a virtue. The Constitutional Court will not uphold the appeal. Yet, even if it was to do so it only changes the method of execution and not whether the execution takes place. It might delay it a little while as the State will need to train up a swords person for the task.

Time vs. Soeharto vs. Time

This past Thursday (21 February 2008) the defamation / libel case that Time Magazine has been engaged in with the former and now dead President Soeharto has entered the next phase with lawyers for Time filing an appeal. The earlier Decision of the Supreme Court that awarded the former strongman or dictator some USD 106 million in damages is according to the lawyers for Time contains a "manifest error".

The manifest error is likely to stem from the fact that two lower courts found in the favour of Time prior to the decision being overturned in Soeharto's favor at the Supreme Court. The reality is that this error is likely to be argued as being the facts of the case do not meet the defamation or libel standards contained in Indonesian law for an award of damages and particularly one this large.

The appeal brief must include new evidence or highlight that a major injustice would be perpetrated if the appeal decision of the Supreme Court is allowed to stand. Technically without either of these conditions being met the Supreme Court may simply refuse to accept the petition.

There are certainly freedom of speech, expression, and press issued in this case. But even more interesting is that the Supreme Court ruled that Soeharto had been defamed by the Time article yet the State continues to pursue its corruption case against the "now pushing up daisies" former President.

Updates to follow as this has potential as morphing into an interesting legal debate on interpretation of the prevailing laws and regulations in this area.