Celebrity Sex Tapes, the Pornography Law, and the Constitutional Court...

The Constitutional Court has accepted and will hear a petition by Farhat Abbas. Abbas is a lawyer and frequently in the news, quite often the subject of the gossip shows himself.

The petition is premised on an argument that the Pornography Law is not draconian enough, particularly that the Elucidations to the law undermine the true intent of the law and as such leave the law inconsistent. The primary focus of the petition is Article 4 and the exception provided for pornographic materials that are produced for reasons of personal use or interest.

It is pretty clear that judges worth their salt strictly interpreting this exception would seemingly have grounds to find that the celebrity sex tapes involving Nazriel 'Ariel' Irham, Luna Maya, and Cut Tari were for personal use and interest. The videos were stolen of a laptop and then uploaded to the internet without the express permission of the videographer or the 'actors' in the amateur films.

This so enraged Abbas that he was inspired to lodge the petition that in essence requests that the Constitutional Court strengthen the draconian nature of the Pornography Law by removing the exceptions from the Elucidations.

Unfortunately, and rather than sticking to the strict legal arguments, Abbas and his lawyer, Bahruddin, have decided that this is a moral issue because the sex depicted in the films is outside of the binds of marriage. The strict legal argument makes more sense and has more likelihood of success. Not to be deterred though, Bahruddin goes on to say, "in the context of pornography, there should be no exception, even for husband and wife. These are the seeds of the eventual destruction of morality."

The petitioners must be beside themselves with the prospect of more celebrity sex tapes to be made and disseminated in Indonesia. The reality is that the pornography law is not going to stop porn. Where there is a will there is a way, and people who want to film themselves will do so pornography law or not, exceptions or not.

It will be interesting to see how the Constitutional Court decides this petition because it gives rise to interesting questions of parliamentary intent and statutory interpretation. It would seem that on a very simple level, the intent of the parliament was to put in place significant restrictions on the production and distribution of pornography. However, it would also seem that the parliament did not have the intent to put in place an absolute ban on pornography, particularly where the offending material was never meant to see the public light of day.

Is Ariel A Victim in the Peterporn Scandal?

Is Ariel a victim in the Peterporn scandal? The current police theory of the case is that the videos were stolen off Ariel's laptop by a music editor that works for his band, Peterpan. The music editor has been identified only by his initials to date, RJ. Apparently, RJ is currently enjoying the hospitality of Indonesia's National Police Force as he is being interrogated in a police station somewhere in Bandung.

I wonder if the police have asked him yet whether or not it is true that there were 32 tapes or so of Ariel's sex-capades with various Indonesian starlets? I wonder if RJ has made provisions for the release of those tapes as well before he was arrested?

It would seem that if the police are now working on the theory that the videos were stolen from Ariel, then surely this makes him a victim, doesn't it? And, if Ariel is a victim, then isn't it time that the police released him? Now, if Ariel is a victim, then doesn't this also make Luna Maya and Cut Tari victims as well? If they are victims, then isn't it time that the police came clean and were clear on what status Luna Maya currently enjoys in this investigation?

Yesterday, it was reported that Luna Maya had been arrested, then it is reported that she has been detained only for the purposes of conducting an interrogation. However, the police seem to be moving towards a case theory that says both Luna Maya and Cut Tari are going to be charged based on the belief that the videos clearly show that they knew they were being filmed.

This raises some interesting legal questions. Hopefully, the respective lawyers of Nazriel "Ariel" Irham, Luna Maya, and Cut Tari will make them. The first question is, in a very narrow legal interpretation is it illegal to videotape yourself engaged in a consensual sex act in Indonesia? This question is narrow as it relates only to the videoing and the sex act. It does not relate to any subsequent dissemination to the general public through YouTube, LiveLeak, Rapid Share, Bit Torrent or any other site dedicated to the uploading and downloading of movies.

If it is illegal, then what specific provision are the police and prosecutors going to rely on?

If the thought is that the police and prosecutors are going to rely on Article 4 of the Pornography Law, then it would seem that the Elucidation to this law makes a specific exception for pron that is made by an individual of themselves and for their own purposes. There might be arguments made for internal inconsistency in the law because other articles such as Articles 8 and 9 of the same law which seemingly suggest that people cannot appear in pornographic material.

Nevertheless, it would seem that despite the broad nature of the provisions the intent of the law was not to get into the bedrooms and hotel rooms of individual Indonesian citizens and monitor what they were doing in their own time. Some might argue that this is not the intent, rather the intent was clearly to get into the individual bedrooms of all Indonesians and restrict any activity that the moral police construed as being naughty.

The point being, if Ariel made the film with the consent of his sexual partners, then has he broken the law? Furthermore, if Ariel had no intent to distribute the films or show them to anyone other than himself and the woman in each of those films, then has he committed an offence as defined by the Pornography Law?

The Pornography Law has survived a Constitutional Court challenge. However, this has not seemingly ended the debate on the subject as there still appears to be considerable opposition to the law. Nevertheless, the opposition needs to be a little more organised and consistently vocal in its opposition if it is to be ultimately successful in overturning this legislation.

I have some personal views on this, but this post is rather to invite anyone interested in these issues to offer an opinion, and then have some constructive debate about that. I appreciate that my blog is not that popular in terms of people visiting and commenting on certain posts. However, I promise to respond to all comments.

Enjoy your weekend!

If you want to get a copy of the law in Indonesian then go to http://www.hukumonline.com and go to the pusat data section. If you want a version in English then let me know (I only have a soft-copy of my own at the moment).

Mano, Oh Mano...

It seems that one can never get enough of Manohara. Well, it would seem that this is what her handlers think. Mano and her handlers are certainly courting the media at every opportunity, and getting her involved in all manner of things. The latest venture is a request to the Indonesian Constitutional Court for a judicial review of the interim law (Peraturan Pemerintah Pengganti Undang-Undang / Perpu) that authorized the Bank Century bailout.

This is not to say that the Bank Century bailout is not worthy of a judicial review of the Constitutional Court. The scandal, and it is a scandal, is probably worthy of some deeper investigation and maybe even warrants some criminal charges down the track. However, Mano's constitutional rights to claim the judicial review are the same as myriad of other Indonesians, and the cynical among us would consider this to be nothing more than opportunism with respect to getting her name in the papers and on TV.

I have not seen anything nor read anything that Manohara has said or written that would suggest that she has the capacity to understand the legal intricacies of a Constitutional Court challenge. So, perhaps it is time that she enlightened us in her own words on why it is necessary to bring such a challenge and discuss and explain a little the legal issues she is seeking to resolve at the Constitutional Court.

Her lawyers, including Farhat Abbas, have suggested that the case is a reflection of her commitment to ridding Indonesia of corruption, and of concerns she has as a good citizen of Indonesia that her tax money has gone to bailing out corruptors, and that the perpu is nothing more than legal protection for those involved. As I said, I would like to hear her articulate these things in her own words.

While she is doing that, she might also like to articulate on the case involving her mother and the alleged abuse of a domestic servant in France for which Daisy Fajarina, her mother, was convicted of and sentenced to 18 months in jail in absentia. Of particular interest would be why her mother has not returned to France to either contest the matter on appeal or to serve here sentence like a good citizen.

Meanwhile, I guess we will be hearing only from the lawyers and the media representatives, with a few sound bites tossed in for effect.

Oh well!

Round 2 for the KPK...

If the analogy of the ding dong drawn out battle between the KPK and the vested interests of the police, the AGO, and seemingly, the establishment, was that of a boxing match, then it is pretty clear that the KPK has convincingly won round two. It might not yet be the knockout blow, but the police, the AGO, and some of the other central figures within the buaya (crocodile) camp are teetering on the ropes just waiting for that final blow before crumpling to the knees and taking the mandatory count.

The police and the AGO will recover from this little contest of wills, if for no other reason that every functioning democratic state needs a viable police force and a viable, and accountable, AGO. However, this contest will develop into the perfect opportunity for the president, SBY, to reassume the mandate of anti-corruption reformer, and clean out the dead wood from both the ranks of the police and the AGO.

The first to go must be Susno Duaji, he should then be closely followed by the Chief of Police, Bambang Danuri. After that, there are a few people at the AGO who must be sweating a little more profusely than usual, starting with Abdul Hakim Ritonga. The AG himself is not safe in this purge, particularly if the president is worth his salt and takes the opportunity to clean house. The former prosecutor Wisnu Subroto seems the most likely of the former officials from the AGO to see heat.

The fallout form these shenanigans is likely to spread and pick up plenty of casualties along the way. The Witness and Victim Protection Agency is also likely to come under a fair bit more scrutiny as it now seems that there were several requests for protection made to them, including by one of the key players in this farce, Anggodo, the brother of the on the run corruption suspect Anggoro Widjojo.

However, it would also seem that there is much more at stake here as Susno Duaji also played a key role in suppressing the Bank Century case. In fact, it has often been reported that he played a key role in getting funds of certain depositors released in a manner which could conceivably be construed as being in breach of the prevailing regulations. Time and greater analysis of the "facts" will tell on that one though.

The recordings that were played to the Constitutional Court yesterday, were a bombshell of sorts. Yet, to all intents and purposes most of what was revealed had been suspected and been the substance of blogs, newspapers, magazines, and gossip pages for at least the last couple of days. Most interesting is the mention of the president's name and his alleged involvement in signing off on the targeting of Chandra and Bibit.

This is interesting on a number of fronts. The president must still be smarting from the fact that the Constitutional Court gave him a bit of a slap down on the interim law he issued to appoint three new commissioners to the KPK. However, to be linked into the frame of two KPK commissioners, which allegedly included discussion of an assassination of one of those commissioners, is troubling to say the least.

The president has called for a full investigation. Not surprising. However, in light of the tape and the alleged allegations the appointment of a Fact Finding Team (Tim Pencari Fakta / TPF) by the president may be perceived by many as an opportunity to cover one's tracks. Any fact finding team needs to not only be independent but be seen or perceived to be independent as well. The president seemingly has a conflict of interest in appointing the team.

For the president's sake, particularly his legacy on anti-corruption, this needs to turn out to be nothing more than a desperate Anggodo and others participating in a little bit of name dropping in order to convince others that the president is on board with what was going down. Nevertheless, the mere mentioning of the president's name should see plenty of questions being raised about the president and his role in this affair.

The playing of the tapes has seen a positive development or two already. Chandra and Bibit have been released from detention. And, Anggodo has been detained for questioning in order to determine how much of the tape is verifiable as being true, but probably more so in order to uncover the true extent of the conspiracy to frame Chandra and Bibit.

Perhaps the game is now up for the crocodiles and the cicak can now return to a much more peaceful life.

Maria Ozawa In Kidnapping Miyabi -- Cancelled

The reason for another Maria Ozawa (AKA Miyabi) post is simple. It allows me the opportunity to post a few more pictures (all freely available on the Internet) of her under the guise of a more serious discussion on the pros and cons of bowing to pressure from special interest religious groups.

Into the substance...

It seems that Maxima Pictures came under government pressure to abandon the idea of using Maria Ozawa in the lead role of the film "Kidnapping Miyabi". This is in spite of assurances from Maxima that they saw no reason to bow to any pressure despite the uproar and protests that ensued once it was announced that the Japanese porn star would be playing herself in the lead role.

The film is a comedy. Loosely the story is of a couple of horny college students with a Miyabi fetish deciding to kidnap her while she is on holiday in Indonesia. I am not sure that the premise of the film is all that good, but to each their own with respect to what sort of films one wants to make, and even more so with respect to what films people want to watch.

However, it would seem that the Indonesian Council of Ulemas (Majelis Ulama Indonesia / MUI) and the Islam Defenders Front (Front Pembela Islam / FPI) have coopted the Minister of Culture and Tourism to jump on board and pressure Maxima Pictures into retreating from their original plan. I wonder if this is a sign of things to come once the new film law gets up an running (assuming it survives in tact after any Constitutional Court challenge to its constitutionality).

The whole idea of the film Kidnapping Miyabi is to have Maria Ozawa in the lead role. The film just would not seem to work if you had an Indonesian actress playing the lead role. It would not work even if that Indonesian actress was a porn star in her own right. If Miyabi was to be replaced with one of Indonesia's more famous porn starlets, such as Jade Marcella, then the film may as well be entitled Kidnapping Jade. Maybe that is the way to go for Maxima.

However, it would be a reasonable guess to say that the MUI and the FPI would undoubtedly have a problem or two with that scenario as well.

In a more general sense, does this decision mean that foreign porn stars cannot even travel to Indonesia as tourists? Or is it just a simple case of foreign porn stars cannot be sponsored to work in Indonesia in any capacity even if it does not relate to their regular income generating employment? This is particularly so if the sponsored employment does not involve them "performing" their standard roles.

I wonder what does more harm to Indonesia's standing and reputation in the world; a Japanese porn actress acting in a comedy or the ongoing institutionalized corruption that plagues business and government or, perhaps, a regional ordinance that permits the stoning of adulterers and the caning of homosexuals?

A bit of a no brainer when you think about it.

The KPK Perpu Has Been Signed...

The President has signed the Peraturan Pemerintah Pengganti Undang-Undang (Interim Law) into effect on Monday (21 September 2009). I have not yet received a copy of the Perpu, but have been in discussion about the content.

The Perpu adds two articles to Law No. 30 of 2002 on the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK), namely: Article 33A and 33B. These additional articles deal with the execution of duties of the commissioners of the KPK and provides the president the authority to nominate additional temporary commissioners to the KPK when there is a vacuum of leadership. Presumably, this provides requisite authority for whatever reason underscores the dismissal or suspension of commissioners from the KPK.

In this case, the Head of the KPK, Antasari Azhar, has been arrested and is to go on trial for his alleged involvement in the assassination of a Director of PT Putra Rajawali Banjaran, Nasrudin Zulkarnaen. Consequently, Antasari has been dismissed from his position. Furthermore, two other commissioners, Chandra M. Hamzah (I used to work for Chandra before he became a commissioner - just in case any disclosure is needed) and Bibit Samad Rianto, have been declared non-active as they have become suspects in an abuse of authority matter involving the issuance of travel bans (cekal) and their subsequent lifting of the bans against two corruption suspects, Anggoro Widjoyo and Djoko Tjandra.

A perpu in this case is not the right way to go. It sends the wrong message. By issuing a perpu the president is in effect stating that he agrees with the manner in which the police are going about this matter. He is also stating that it is legitimate for the police to criminalize actions that are explicitly within the administrative field. Even the Chief Justice of the Constitutional Court, Mahfud M.D., has stated that this is an administrative matter that would require the two individuals who feel that they have been victimized by the administrative actions of the KPK to file suit to seek compensation or damages for any loses sustained.

Issuing perpus in this context is a slippery slope that might come back to haunt the president when he is a former president.

The Pornography Law -- Judicial Review

This has appeared previously on the en.hukumonline.com website - here.

The debate on the pornography law seems to be a never ending one and is set to continue in the Constitutional Court on 23 February 2009. On 9 February 2009, in a move without any fanfare or announcement, eleven individuals filed a petition in the Constitutional Court seeking a judicial review of the Pornography Law. The petition seeks to have Articles 1(1), 4, and 10 repealed as constitutionally invalid.

The petitioners, among others, include Billy Lombok (Minahasa Christian Gospel Church), Jeffrey Delarue (Indonesian National Youth Committee of North Sulawesi), Janny Kopalit (Manado Catholic Youth), Goinpeace Tumbel (North Sulawesi Indonesian Christian Youth Movement), Bert Supit (Minahasa Cultural Council), and Charles Lepar (Manado Inter-Church Youth Forum). To represent them in the judicial review process, they have engaged O.C. Kaligis as their lawyer.

The substance of the petition is not surprising and is representative of much of the debate on the validity of the pornography law to date. The first claim as it relates to Article 1(1) is that the definition of pornography is too broad and as such is all-encompassing. The petitioners are arguing that such a broad definition will catch legitimate art and other traditional cultural practices under the definition.

The crux of the argument is that with such broad cultural diversity in Indonesia from Sabang to Merauke that it is unfair to have such a broad definition. Simply, what is acceptable in Papua might not be acceptable in Aceh. But, that lack of acceptance must not see the conduct criminalized as pornography or indecency.

Nevertheless, it will be interesting to see whether the Constitutional Court reads the pornography law as a whole or only the individual articles. The reason for this is that the government continues to maintain that the law specifically protects certain art and cultural traditions under other articles within the law. The petitioners despite representing an eclectic mix of church and youth organizations, they are also artists who feel that they have a legitimate grievance here in light of some of the art that they produce, such as carvings and paintings, would seemingly fall foul of the definition.

An angle adopted by the petitioners, and worthy of note, is that as working artists who earn a living and support families from their artistic income the pornography law discriminates against them and in essence violates their right to work. This is the substantive argument against Article 4.

The problem, as the petitioners see it, with Article 10 is that the article is open to multiple interpretations. The petitioners seem to focus on the term “depict nudity” and the definition may vary from one region to another in terms of what is considered to depict nudity. The argument seems to rely, similarly to Article 1, on the fact that Indonesia is a country with a rich history of pluralism and cultural diversity.

However, in a generic sense the term, depict nudity, is not problematic. Simply, what is depicting nudity in Aceh will still be depicting nudity in Papua. The difference is whether or not the current law would provide an exception for the depiction.

On the sides to this petition there are still many within the community that take issue with the pornography law. One issue that continues to arise is related to enforcement and how law enforcement agencies, irrespective of whether they are the police or the Office of the Public Prosecutor, intend to enforce the provisions that many consider to be problematic.

At various times both the National Commission for Women and the National Commission for Human Rights have invited law enforcers to discuss in detail the proposed implementation and subsequent enforcement of the provisions of the law. These organizations generally focus on the broadness of the definitions and the all-encompassing nature of these definitions as the basis of their rejection of the provisions of the law. In this case Article 4 was also noted as being most problematic.

However, the police see the law as a valuable tool in combating crimes related to pornography. Nicolas A. Lilipaly, Head of the Pornography, Indecency, and Morality Unit at the Metro Jaya Police Headquarters, is unequivocal in stating that the Pornography Law has enhanced the police’s ability to deal with pornography, which had to date been dealt with under provisions of the Indonesian Criminal Code.

In another interesting aside and also related to the pornography law, the Chief Judge of the Central Jakarta District Court, Andriani Nurdin, stated that where laws exhibit weaknesses then the duty falls to the court to exercise their discretion and interpret the provisions as they appear or to create the law where the legislation remains silent. There is likely to be some serious questioning of this kind of judicial activism of the bench from the community, particularly if the courts were to use their discretion in ways that clearly exceeded the intent of the parliament when drafting the law.

This latest installment in the debate on pornography is certain to keep the issue alive within the community.

(RAB / SH)

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.

Wiranto, Sutiyoso, and the Indonesian Presidency

The recent passage of the Presidential Election Bill was likely to draw criticism and this criticism was likely to be from prospective candidates like Wiranto and Sutiyoso. The reason being that to all intents and purposes it makes the task of getting them nominated considerably more difficult and will demand a lot more horse trading to occur to make a nomination happen. Horse trading is likely to increase the expense.

The bill sets a threshold of 20% of seats or 25% of the popular vote. Now, this can be an individual party or an alliance of parties. However, in this dog-eat-dog world that is Indonesian politics the chance of either putting together an alliance of that size is unlikely.

The cause of action will undoubtedly be a constitutional challenge to the Constitutional Court. The challenge should be an interesting one as the bill in demanding a 20% of seats or 25% of the popular vote threshold inadvertently would seem to rule out the idea of independent candidates.

It would seem another former general is also likely to come on board as it would seem the threshold requirements severely dent the chances of Prabowo from ascending to the top job. The photo of the three was taken from here.

Why Wait for Friday?

I promised to provide an update on the planned executions of the Bali Bombers (photo from Kompas) on Friday unless something interesting came up, and it did.

It seems that the legal team of the three are going to take this thing to the ICJ. I am not entirely convinced that they can as the ICJ is generally a State against State deal.

Achmad Michdan of the legal team has said they are going to send a letter to the "International Court". I am guessing that this is the International Court of Justice (ICJ).

My guess is based on a Kompas Newspaper report (in Indonesian). However, a letter would seem to be wasted on the ICJ. It would make more sense to send a letter to a UN organ that dealt with human rights, such as the Human Rights Council.

It seems that the legal teams complaint is that the Constitutional Court of Indonesia does not take into account that the prescribed method of execution in Islam is beheading. I need to find out some more information on this.

I will check it out later in the morning and add a postscript if, and when, I find out something.

Thanks to Calupict for pointing me in this direction.

Appeal Denied -- What's Next?

It seems that the three cowards, AKA Amrozi, Samudra, and Mukhlas (photo courtesy of Reuters) have been thwarted once again, this time by the Constitutional Court. It seems that the Constitutional Court has adopted a position that says the whole point of the death penalty is to see the convicted person dead. In other words death sometimes hurts and in death penalty cases the method of execution may cause pain but this pain does not constitute torture and as such the method cannot be deemed to be cruel and unusual.

Therefore, the firing squad does not constitute a method of execution that is either cruel or unusual or, for that matter, inhuman. The Constitutional Court seems to concede that pain might be involved but that the pain is not enough to warrant any Court intervention in this matter. It is worth noting that even if the Court had found the firing squad to be cruel and unusual, these three would not have benefited as Constitutional Court decisions apply going forward and not retrospectively.

This means that there appears to be no further reasons for the delay of the executions. It is expected that the Attorney General, Hendarman Supandji, will announce the date and time of the executions on Friday. Executions are not normally announced prior to the execution taking place. I guess interest in the case is such that the government feels a pre-announcement is warranted.

Next update on Friday (unless there is something worth noting beforehand).

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.

Bali Bombers -- Is It Time?

The information or misinformation coming out of the Office of the Public Prosecutor and the Attorney General's Office has lead to considerable confusion as to when the the murderous trio of Amrozi, Samudra, and Mukhlas (photo from here) are going to face the firing squad and finally get that opportunity to meet their maker and find out if there really are 72 virgins waiting for them.

The latest information out of the Attorney General's Office is that the execution is likely to happen within two weeks. There has been some suggestion that there is to be a "big" announcement on Friday of next week.

The bombings for which the three have been tried and convicted for carrying out happened a touch over six years ago. I remember them well as it is also the day of my wedding reception. My wife and I were married on 11 October 2002 and we had our reception the following day. We finally arrived back at our hotel after midnight and turned on the news. It made for an interesting day of mixed emotions.

My parents had been in Bali just two days before the bombings and if I had not been getting married probably would have still been there. They probably would not have been in Paddy's or the Sari Club. But, I did have friends that were.

Jasman Pandjaitan, spokesman for the Attorney General's Office, has said that there are no longer any technicalities that might see further delays in the execution. This includes any decisions from the Constitutional Court. Even if the Constitutional Court was to decide that the firing squad was cruel and inhumane, then this decision would not apply to the Bali Bombers. The Constitutional Court rulings have traditional applied from the date of the decision going forward and have not to date been applied retrospectively.

Furthermore, it would be surprising if the location, date, and time of the execution was announced prior to the execution. Any announcement of the location would likely see large crowds gather of those for and against the executions. There will undoubtedly be an announcement after the executions take place and probably even the obligatory photos and video of the coffins being loaded into hearses.

It will be interesting to see if the executions result in any violence. All three have said that their executions will see swift retribution handed out to those who participate and have facilitated the executions.

It would seem that the countdown to execution has started.

May God have mercy on your murderous souls!

Beheading the Bali Bombers

The Bali Bombers; Amrozi, Samudra, and Mukhlas, have instructed their lawyers to lodge an appeal with the Constitutional Court. The basis of this appeal is that execution by firing squad is a cruel and inhumane form of execution. The arguments in support of this rely on the botched execution of Muhammad Tubagus Yusuf Maulana (Usep) on 10 March 2008. Usep was executed by firing squad and did not die for 10 minutes. The question here is whether the firing squad is inhumane or whether those tasked with the duty of executing Usep were just poor shots?

The Constitutional Court decision is likely to be handed-down fairly quickly as the government intends to execute the three before 1 September. The fasting month of Ramadan is scheduled to start on 1 September and it is unlikely that the government would execute them on the first day of Ramadan. So, if the executions do not happen before 1 September then they are likely to be postponed until at least early October.

The team of lawyers representing the three also seem to be basing their arguments on the fact that beheading is permitted in Sharia Law. This is indeed true, however, Indonesian criminal law is not based solely on Islamic or Sharia Law and beheading is not the recognized form of execution for those on death row. Therefore, this argument to all intents and purposes is moot. The lawyers that form the Muslim Defenders Team (Tim Pembela Muslim / TPM) are better off arguing hard on the unconstitutionality of the form of execution rather than the right of Muslims to be executed by beheading. Once again this right is not explicitly recognized in Indonesian law.

Interestingly, if the Constitutional Court is true to form in this respect, even if they were to decide in favour of the application, the decision must only apply from the date of the decision and cannot apply retrospectively. Therefore, because the firing squad was constitutional at the time the sentences were handed-down, then these three can still be executed in this manner. However, going forward the government would be required to put into place an alternative form of execution. This would probably be lethal injection. The former Attorney General, Abdul Rahman Saleh, alluded to such a change before stepping down from the position to take up an Ambassadorial post.

One of the lawyers from the TPM has allegedly suggested that France still permits the beheading of prisoners. However, my understanding is that the French abolished the death penalty in 1981 and I have not heard of it being revived of late as an acceptable form of punishment. I guess I will have to do some more research on this unless one of my readers points me to a source.

The end result is that "dead is dead". Nevertheless, I do not see why these individuals should get any special treatment in comparison to other death row inmates. Their crimes were abhorrent and the punishment, irrespective of whether I agree with it or not, has been handed-down. As soon as the government and the courts entertain regulating punishments on religious beliefs then to ensure fairness then all religions must be able to dictate the forms of punishments that are acceptable. I am not sure that this is the way that Indonesia wants to go.

I have posted on the Bali Bombers before, but once again, the moment of truth is forever getting closer. These three murders will soon be meeting their maker, and my guess is that there will be no 72 virgins waiting for them but with a bit of luck an eternity of pain and suffering similar to that which they inflicted on the victims of their murderous deeds. I still feel that they should have been sentenced to rot in jail for the terms of their natural lives.

The photo attached here includes the following information: Aitape, New Guinea. 24 October 1943. A photograph found on the body of a dead Japanese soldier showing NX143314 Sergeant (Sgt) Leonard G. Siffleet of "M" Special Unit, wearing a blindfold and with his arms tied, about to be beheaded with a sword by Yasuno Chikao. The execution was ordered by Vice Admiral Kamada, the commander of the Japanese Naval Forces at Aitape. Sgt Siffleet was captured with Private (Pte) Pattiwahl and Pte Reharin, Ambonese members of the Netherlands East Indies Forces, whilst engaged in reconnaissance behind the Japanese lines. Yasuno Chikao died before the end of the war.

Funding the Knowledge Nation

The funding of education is an issue that has gained increasing prominence over the past several years, particularly exactly how much of the State and Regional Budgets must be allocated. The allocation issue has been one that has made its way to the Constitutional Court. The Constitutional Court handed-down a decision that stipulated that there was a constitutional requirement that the government ensure that at least 20% of the State budget was allocated to education. The ball is essentially back in the government’s court with regards to ensuring that they comply.

Nevertheless, the Constitutional Court decision is the easy part. The more difficult part is finding the money to reach the 20% allocation threshold considering the competing needs that the Indonesian government finds itself facing. The sky-rocketing price of oil in world markets and the government’s decision to reduce fuel subsidies has had, and will continue to have, an impact on the lives of ordinary Indonesians. Even though world oil prices have eased in recent weeks from record highs, the government’s insistence on maintaining even reduced subsidies continues to put pressure on the budget’s bottom line (photo).

If the government intends to comply with the 20% allocation for education in the sooner rather than later time frame, then perhaps the government will have to tap into its large foreign reserves. This is particularly so if the government intends to run a budget that is predicted to be in deficit to the tune of some IDR 100 trillion through 2009. Furthermore, it is worth considering how the 20% funding allocation is to be made up. For example, is it to include salaries of teachers and administrative staff?

It is worth noting that the Government Regulation, No. 48 of 2008, is not a specific response to the Constitutional Court decision but rather it is aimed at enforcing Articles 46(3), 47(3), 48(2), and 49(5) of Law No. 20 of 2003 on the National Education System.

Where the Funding Burden Lies
Interestingly, the Regulation characterizes the funding of education as a joint endeavor not just between the central and regional governments but also with the help of the community. The sharing of the burden and the involvement of the community is designed to foster an education management budget and structure that is fair, efficient, transparent, and accountable.

Privatization
This is intended to ensure that the burden is shared but the involvement of the community and that community picking up part of the tab for education is perhaps the first step towards the complete privatization of the educational sector. Complete privatization would be many years into the future and would be unlikely to ever succeed unless there were specific provisions in place that would cater for those that would not have access to private education, the poor and disenfranchised.

The simple math would suggest that the smaller the number of public education facilities the larger the Rupiah amount of a 20% allocation to the funding of public education. This would seem to be a good thing as then the government could conceivably allocate more of the obligatory 20% of the State budget to acquiring more land and building more schools. This would then allow the government to also come good on its promise of providing a basic nine-year education that is free of fees to all Indonesian children.

Community
The Regulation defines the community in terms of educational units established and managed by the community, participants in education programs or their parents or guardians, and the all capturing “anyone else” with an interest and a role to play in education. The ‘anyone else’ is further defined in the Elucidations to this particular article as being business people, alumni, and social organizations.

Fees
Articles 3, 4, and 5 of the Regulation list a whole series of fees that are associated with education including the investment in land and buildings, investment in operations, and the investment in teacher and administrative staff salaries and allowances. For example, the Regulation is explicit that these fees are to include the basic salaries and allowances for teaching and lecturing staff.

These fees are the responsibility of the relevant governments. The fees which have been noted in some detail are the responsibility of the governments involved and as such the numbers must be formulated and then allocated in the budget as educational expenditure.

Investments by the Government
The investments noted above are then enumerated in detail in the articles that follow. These investments include capital expenditures in the procurement of land and the subsequent building of schools on that land. However, the investments are also to include development of human resources.

Grants
The investments can be in the form of grants from the Central Government to the Regional Government or vice versa where the purpose of the grant is clearly identified as being for an educational purpose.

Regulatory Framework
Each of the provisions includes a statement that all of this investment is to be carried out pursuant to any prevailing laws and regulations. It is therefore expected that there will be additional regulations and Ministerial directives issued in order to set out in ever greater detail the means of implementing the provisions of this Regulation.

Foreign Aid & Assistance
The Regulation permits foreign parties to provide assistance for education initiatives, such as the procurement of land and buildings. This assistance can presumably include expert human resources provided these human resources comply with prevailing labor laws and regulations.

However, the assistance or aid provided must be non-binding. In essence, the provision of aid does not entail that the foreign party has any say in the administration of any educational facility that may benefit from the foreign assistance.

Funding Sources & Management
Chapters V and VI of the Regulation provide extensive lists with regard to what the valid sources of education funding are and how these funds are to be managed.

Funding
Generally, these sources include:
1. Central Government budget;
2. Regional Government budget;
3. Foreign aid and assistance; and
4. Other legitimate sources.

For private educational institutions the sources of funding includes:
the founder(s) of the institution;
1. community donations, and fees from students;
2. income from courses; plus
3. Central and Regional Governments;
4. Foreign aid and assistance; and
5. Other legitimate sources.

Management
The management of education funds is divided into two basic principles:
1. General; and
2. Special.

The general principles envisaged in the Regulation include the principles of fairness, efficiency, transparency, and accountability. Each of these principles is further enumerated in the Regulation. For example, efficiency refers to the need to optimize access, quality, relevance, and competitiveness in the provision of educational services.

The special principles stipulate that allocated funds are to be managed in accordance with the government’s budgetary system and pursuant to the prevailing laws and regulations. This is to be interpreted as requiring proper book keeping and reporting with respect to the management of education funding. Therefore, there is an expectation that proper accountancy standards will be followed.

The second part of the special principles section is the requirement for planning. Planning requires the Central Government to allocate funding based on considerations such as the long and medium term national development plans. The Central Government must also consider the strategic national education plan. On the regional government level the general considerations are the same. However, a Regional Government must also consider the regional strategic plan.

The Percentage of the Budget to be Allocated
The Regulation does stipulate in Article 80 that at least 20% of the State Budget must be allocated to education on an annual basis. This is contained in a solitary sentence and is then followed by another sentence which states that the Minister of Finance is to issue further regulations to set out how the government will comply with this obligation.

The most interesting consideration to be determined in this regard is whether or not the 20% allocation is to include the salaries of teaching and administrative staff. If the allocation is to include salaries and other entitlements, then the majority of regional governments and the central government itself would seem to be close to this level of allocation already.

Article 81 requires that Regional Governments also allocate at least 20% of their respective budgets to education. The precise manner and mechanisms for this are to be regulated in an as yet to be issued Minister of Finance regulation.

Conclusion
The enactment of this Regulation is a positive sign that the government is taking seriously the need to develop and maintain an education system that is not only competitive but a world leader. The provisions of this Regulation set out a framework within which this particular dream can conceivably be realized. Nevertheless, this relies on more than just the government paying lip service to education funding, it requires the government to not only make the necessary allocations in the budget, but requires the government to ensure that the allocations are dispersed as they are meant to be.

If both the Central and Regional Governments were to allocate at least 20% of their respective budgets to the education sector then in a very short span of time Indonesia must become the “knowledge nation”.

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.

University Education in Indonesia

University education in Indonesia is like most other places not free, it is a privilege and not a right! This means that a university education might be your ticket to a better job and perhaps a larger salary but it is going to cost you. Simply, if you or your parents can afford it then a university education is a reality. If you or your parents are not quite so well to do then a university education might only become a reality if you are able to secure a scholarship that takes care of your admission and tuition fees.

This is no different to Australia. University education used to be a lot cheaper and this was because the government was throwing money into the higher education sector. However, economic rationalization meant that the government decided the best means of recouping some of this money was to institute a system where the user pays. In this case the user pays through the tax system. Simply, the government covers the cost of the education and the recipient of that education then pays back the money to the government through the tax system. The amount owed is indexed to inflation. I am still paying my university education debts off!

The Higher Education Contribution Scheme (HECS) makes university education possible for many but it ensures that many people remain in debt for long periods of time after they graduate.

Perhaps in the aftermath of the Constitutional Court decision that held that the government must contribute 20% of the State Budget to the education sector that some additional money can be thrown at the higher education sector. However, there are simply more pressing concerns at primary and high school level in terms of funding education.

If the government does not put any money into higher education then State-funded universities will have to rely on increasing commercialization to make ends meet. This will be at the expense of students and their education. In contrast, the commercial interests of private universities is far less complicated as from inception these institutions have been all about making money off their students and research activities. The Campus Asia review of higher education in Indonesia makes this point clear when it ranks Universitas Pelita Harapan as the number two university in Indonesia.

Personally, education to the undergraduate level must be free.

PERADI vs. KAI

This should be a real hammer and tong battle to the death! The recent establishment of the Congress of Indonesian Advocates (Kongres Advokat Indonesia / KAI) to rival the previous leader of the pack, PERADI (Perhimpunan Advokat Indonesia / Indonesian Advocate Association), is sure to be spectator sport of the highest order! The President was scheduled to open the Congress but PERADI complained in writing and then the President mysteriously fell ill (probably some bad sate).

The battle should see a few families pitted against each other in the heat of battle. However, although possibily amusing, it is not the family angle that is interesting but the legal ones. The Advocates Law (No. 18 of 2003) explicitly requires the establishment of a single peak bar association to represent Indonesian advocates. This had been thought to be PERADI.

Interestingly though, the eight bar associations that existed prior to the establishment of PERADI have remained in existence. The question in my mind has always been why were they not dissolved either by default with the establishment of PERADI or by decree or law by the government? PERADI from the outset needed to be above the day-to-day fray in terms of not pandering to any particular interest and remaining politics free. Any failure to do so was always destined to lead to the development of a rival organization.

It is being reported that the KAI claims that 10,000 of the 15,000 registered and licensed lawyers are ready to bail on PERADI and join up with the KAI. If this were true then the ding dong battle I was hoping to see might not eventuate as the KAI seems to have the numbers for a spill! A no confidence motion in the current PERADI leadership and then replacing them would also work. However, the KAI have adopted a position that PERADI is illegitimate and that the KAI is now the legitimate single bar assosciation as envisaged in the Advocates Law.

As I said the legal issues are certainly to be interesting as this is likely to see the Constitutional Court become involved.

I wonder if Todung Mulya Lubis joins KAI does he get his practice certificate (license) back or what?

I will be watching and reporting if any fun stuff happens.

Jimly Asshiddiqie & the Constitutional Court

The only thing apparently standing in Jimly's way to a second term on the Constitutional Court is personal political ambition! The previous months have often seen Jimly in the public eye at political events. Whether this is openly courting support for a second term on the Constitutional Court or courting support for a bigger play on the political stage such as the Vice-Presidential nominee on a favourable ticket remains to be seen. But there seems little doubt that the Chief Justice (or as he prefers the President of the Court) is angling for much bigger fish!

There is considerable parliamentary support for the current Chief Justice and in this sense he would be an unbackable favourite to be one of the three nominations that the parliament can make. The other six nominations are split three a piece between the Supreme Court and the Government (red: President).

The thing about Jimly is that he is consistent in his decision making and that provides a degree of certainty in the legal process. It is pretty much a case of you know what you will get decision wise. I certainly do not always see eye-to-eye on the interpretation of the Constitution aspects nor the manner in which retro-activity has been defined and now enshrined in Indonesian law (I know who cares, he is the Constitutional Law Professor and expert and you are but a mere lawyer -- yep, but an opinionated lawyer!). But to the Court's credit it has been consistent on this front.

Nevertheless, the danger is always going to be judicial ego, the idea of overstepping the mark from judicial review and interpretation to that of law makers. I have recently had a short but interesting "to and fro" with the Chief Justice on this point. The Court views itself as the ultimate guardian and interpreter of the Constitution and in this respect sees itself as a balancing and where necessary a correcting force to all those less educated souls on constitutional law.

My personal view is that the Chief Justice should throw his hat into the ring for another round. If he is serious about leaving a legacy, then two-terms on the Court should pretty much enshrine any legacy he wants to leave in the judicial sense. But if the call of public service is too great, and I am sure that it is, he will more than likely be opting to try and kick start a political career where any legacy he might leave could be much broader and far-reaching than any legacy he might leave at the Constitutional Court...

Time will tell!