Ariel Looking Down the Barrel: Five on the Inside?

Nazril 'Ariel' Irham the front man for the Indonesian band Peterpan is facing a five-year jail term and a fine of IDR 250 million for his alleged role in a porn distribution racket. The sad part about this case is that it should never have gone to trial. There is no case to answer here. Even with a very novel and creative interpretation of the law it is very difficult to see exactly how Ariel has broken the law as the prosecutors have set out to prove.

This is simply a case of a celebrity making a sex tape, having the tapes stolen, and then watching them wend their way online. The only witness for the prosecution is a man who has everything to gain and nothing to lose in testifying that it was all Ariel's idea. Let's face it, Redjoy uploaded the sex tapes to the internet, of that there seems to be little debate. However, how he came into possession of those tapes is the crux of this case. Simply, the prosecutors have not proved beyond a reasonable doubt that Ariel was a participant in the crime as charged.

The fact that Ariel is the man in the sex tapes is not a crime in and of itself. So, even if the prosecutors were to have proven beyond any doubt that it was Ariel "doing the deed" with Luna Maya and Cut Tari there is no case to answer. This case is solely about the distribution of porn, and the prosecutors have not proven that charge.

The fact that Ariel is a celebrity does not place a larger burden on him to set a good example. If it does, then any public figure must be liable to the same degree. Surely the prosecution is not arguing that there should be one law for the rich and famous and another law for the rest of us, are they?

However, the defense case seems to be hinging on the argument that the anti-pornography law cannot be applied retroactively. This seems to be the weakest of the arguments that they could be making. The simple and best argument is that Ariel was not involved in the distribution of porn. As this seems to be the main thrust of the prosecution case. Irrespective of whether the tapes were made in 2005 or 2006 the production of a private sex-tape between consenting adults is not a crime. So, the production aspect is moot. Once again, this is a case about distributing porn. The tapes were uploaded to the internet in June 2010 and therefore at least in a temporal sense they fall within the gambit of the articles of the Anti-Pornography Law.

I just don't quite get why O.C. Kaligis is harping on the anti-retroactivity angle in preference to just saying "hey, the defendant has not committed any crime!" And, then add "the defense has proved beyond a reasonable doubt that the defendant was not involved in, and did not consent to, the distribution of the sex tapes!"

I guess Kaligis will be making these submissions at the next trial hearing.

Undoubtedly there are divergent opinions on what would constitute a good outcome in this case. But, from a legal perspective it is difficult to see how a conviction could be handed-down. Yet, perhaps more importantly in a legal certainty sense is why the prosecutors have pursued this case with such zeal why letting similar cases fall by the wayside.

Ho hum...

The Distribution of Pornography -- The Case Against Ariel...

You really do have to wonder about the intent in this case. When it is all said and done this is a case of a two videos shot by consenting adults. Are there moral issues to be considered in a case like this? Perhaps, but the charges that Ariel has been charged with are not moral ones, they are criminal.

The charges relate exclusively to the distribution of the videos themselves. Nevertheless, it may be argued that the use of the 1951 Emergency Law  is intended as a "catch-all" charge that will allow prosecutors to take the moral route and claim that Ariel has violated some existing customary or traditional law that applies in Indonesia.

So far, only Ariel and Cut Tari have been charged. The most controversy over this relates to the use of Law No. 1 of 1951. The Emergency Law was clearly not drafted for this purpose. Contextually the 1951 Law relates to a period of Indonesian history where it was experimenting with its unique form of Sukarno-ist constitutional democracy and trying to untangle itself from myriad of Dutch created laws and norms and replace them with some of their own.

Funnily enough, in 2010 it could still be argued that the process is an ongoing one! Luna Maya, the other amateur porn star involved in these tapes has so far evaded charge. She used to star in an advertisement for Lux soap, perhaps there is a pun to be had here in relation to her ability to keep herself clean of charges.

So, what is Ariel really looking at here. The main charge relates to Article 29 of the Anti-Pornography Law (and for some reason the similar provision under the Information and Electronic Transactions Law), Article 56 of the Criminal Code and Article 5(3) of the 1951 Emergency Law.

The Anti-Porn law provides for a 16-year jail sentence for the distribution of pornographic material. Whereas the ITE law only allows for a 6-year sentence. This is standard prosecutorial procedure in a case where one is not so sure of what crime has been committed, so charge the same offense in myriad of ways ranging from the most serious to the least serious and with a bit of luck maybe one of them will stick somewhere along the line.

What is interesting about this case, aside from the stupidity of pursuing it, is that the police still have not been able to establish an accurate timeline of the event relating to the videos, particularly when the Cut Tari video was filmed. The police have also seemingly not been able to nail down exactly where it was shot either. Strangely enough there is some discussion that the video may have been shot in 2005, or perhaps 2006, or maybe even as recently as 2010...Ouch!

Oh well. Back to Ariel and his dilemma or lack thereof with the current charges. The primary charge seems to be that he was actively involved with the distribution of the videos. The police are apparently basing their entire case on the testimony of one man, Redjoy or Reza. Redjoy has piped up that he received the tapes in the form of computer files with the express instruction to prepare them for upload to the internet. According to Redjoy's testimony, these files were provided by Capung Studio. Capung Studio happens to be the studio that Ariel owns in Bandung. What seems to be missing from most reports on this transaction is whether it was Ariel himself that handed the files over to Redjoy.

This is going to quickly degenerate into a he said vs. he said scenario. Ariel, despite Cut Tari's admission to the contrary, has yet to acknowledge that it was him in the video. However, that aside, it has been consistently argued by the alleged amateur porn stars that they were the victim of a crime themselves, theft. And, it was this theft that saw the files wend their way online. Now, it would seem that if Redjoy was involved in the theft then it would make sense to start claiming that no theft happened but rather the files came into his possession through Ariel, or someone linked to Ariel, for the purpose of uploading the files for the enjoyment of the world over.

The trial seems destined to proceed. It would be a real turnaround for the prosecutors to fold on this case now. The trial will be in West Java, Bandung to be precise, so their should be a steady stream of infotainment journalists making their way to Bandung.

This is going to be messy.

Prita Mulyasari and "That" Defamation Judgment...

There is one thing you can say about Indonesia, justice is a slow process through the courts. On the other hand, unchecked vigilante justice ensures the swift conclusion to almost any dispute! However, that old adage, which I am sure is too cliche now, "justice prevails", has proven true yet again.

Unfortunately, Prita Mulyasari had to wait a long time for justice to be recognised. Good for her, but one must not forget the very many Indonesians whose cases do not attract the same amount of public attention; they continue to languish in the system and without any light to be seen at the end of their nightmarish legal tunnels.

For Prita, her case should never have gone to the courts in the first place. It should not have gone to the courts for the simple reason that there was no case to answer, either criminal or civil. The case does highlight how over-zealous prosecutors can get it wrong, particularly when the ominous specter of case brokers and court mafia appear. That, and perhaps, a suggestion that the "victim" figured any up front case facilitation fees they might have to pay to get this thing off and running would be recouped several times over in any judgment that was awarded to them

The civil suit saw damages awarded to Omni International Hospital to the tune of IDR 204 million. The international here does not seem to relate to the level of service they provide, but more to the scale ..., nah, pet's not go there, I would not want to get sued for defamation or anything!

So, the Supreme Court in its infinite wisdom decided to toss the civil judgment against Prita. Tossing the case means the fine is expunged along with any need to make a public apology in a local rag in Jakarta. Nevertheless, the Supreme Court's decision to toss the civil suit ends only the civil action. The reality is that there is still a pending criminal appeal on which the Supreme Court is to decide (at least as I understand it). Prita's lawyers are bandying around the idea that it is unlikely the Supreme Court will toss the civil case and affirm the criminal case.

On face value, I would agree. But, it is the Supreme Court of Indonesia, the last bastion in many cases of hard-to-explain decisions. Let's face it, the last 48 hours has seen them reignite the KPK war by issuing a ruling that says the case against Bibit and Chandra must continue. It is fair to say the last 48 hours has been a real mixed bag at the Supreme Court.

Once the Supreme Court hands down the decision on the criminal appeal I might be able to close this sorry saga in a blogging sense.

Peterporn and Increasing Child Rape...

A celebrity sex tape and the world of Indonesia is falling apart at the seams, it seems! When it is all said and done what we have here is a celebrity sex tape. Nothing more, nothing less. What we also have is a celebrity sex tape which has already been watched by millions upon millions of 'law abiding and moral' Indonesian citizens. The rest of what we have is anecdotal and unsubstantiated theories of what the impact has been on Indonesian society and how it should be dealt with. Just about all of it over the top.

What is really disturbing is that much of the over the top stuff is being driven and flamed by the obvious pot stirrers such as the Islam Defenders' Front (FPI) and institutions such as the Child Protection Commission (KPAI). I do not know if I can say it enough times, all we have is a celebrity sex tape, two of them to be precise so far. That is it folks!

Now, the Chairman of the KPAI, Hadi Supeno, is of the firm opinion that Nazriel 'Ariel' Irham must apologise to all Indonesian children. This belief is based on an assertion that Peterpan has some 30 million fans and a great number of them are in their tweens. What is truly disturbing is the assertion that the sex tape has led to an increase kn reports of rape and sexual abuse involving children, both as perpetrators and as victims. The intent is clear because the above assertion is followed by a modifying statement that suggests this increase is post the release of the tapes.

To my knowledge, and I read widely and peruse Indonesian news 4 or 5 times a day, there have not been any rapes or sexual assaults where the claim was that the perpetrator was trying to copy the actions of Ariel. To make the link that there is some kind of direct correlation between the videos and increasing sexual assault reports is irresponsible in the extreme. Supeno seems more interested in acting in his own interests by making outrageous statements to get his name and mug in the papers and on TV than he does with the idea that the interests of the child should be paramount.

The apology, and the demand for it is a little premature. If the tapes / videos were stolen, then Ariel has been the victim of a crime. Since when has law enforcement been about punishing the victims of crime and not the perpetrators of those crimes? There is no guarantee that with a strict reading of the prevailing laws and regulations, especially the Porn Law, that Ariel has in fact broken the law by taping himself doing the deed with either Luna Maya or Cut Tari.

The idea of video taping yourself having sex is questionable in light of the fact that these things can get lost or stolen. The rest as hindsight shows us is history. There is no going back once the footage is out there. Should Ariel apologise for having sex? No. Should he apologise for video taping it? If he wants to. Should he apologise to the youth of Indonesia for the tape finding its way into the public forum? No. At most this should become a teaching moment where Ariel can talk directly to youth about the perils associated with his actions and how intent does not always matter in cases such as this one.

But not being one to let sleeping dogs lie, Supeno has fanned the flames even further by suggesting that even if Ariel does not want to apologise to the children of Indonesia, he should apologise to all Indonesians as a means of quietening down the hardliners such as those in the FPI. Supeno then goes on to equate any failure to apologise to the masses as being the trigger to violence. The Chairman is being truly irresponsible in suggesting that the failure to apologise is a legitimate trigger to violence.

The FPI have a pretty solid track record of violence. They do not need to be spurred on to further violence. Nevertheless, claims such as those put forward by Supeno and the KPAI will only serve to embolden those look for any reason to wreak havoc on the innocent. Emboldened as they now are, the FPI in Bandung is demanding that the local government revoke Ariel's identity card. Every Indonesian is required to hold an identity card. Is the suggestion that making a sex video is sufficient to extinguish your rights as a citizen. It seems that revoking his Bandung ID is not enough, the FPI would like the local government to ban Ariel from ever returning to Bandung. Over the top? Just a little!

At least the Home Affairs Minister, Gamawan Fauzi say the irrationality of demanding the revocation of Ariel's ID card by saying that there are no laws in place that would allow for the revocation of an Indonesian's ID card for making porn videos.

The kicker for me is that the FPI jumps up and down on the spot in between destroying public and private property in the name of Allah and Islam while simultaneously perpetrating violence against those who will not agree with them, and then say that Ariel has destroyed the moral fabric of Indonesia. There is something inherently wrong in the claim, the vast majority of Indonesians can see through the hypocrisy of that without blinking an eye.

Once again, I do not know if I can emphasize this enough, this is just a celebrity sex tape! The world is not ending, the sky is not falling in, and life will go on!

For those of you out there who think this is the end of the world as we know it, Get A Grip!

Luna Maya Gets Arrested...

Well, it was really only a matter of time before the police upped the ante on this one and arrested Luna Maya and placed her in custody. The official reason the police have given is that she is being "uncooperative".

It is hard to determine whether or not this should be read as just not wanting to make a statement or answer police questions or whether she is actively obstructing the investigation of the police. In any event, she is now in custody and enjoying the hospitality of the Indonesian National Police Force.

She is being held under provision in the Anti-Pornography Law and the Criminal Code. This is interesting because the police had rather steadfastly maintained that she was a victim in this incident. So, by arresting her are the police suggesting she is no longer a victim but rather a part of the much larger plot to produce and disseminate amateur porn?

If either Luna Maya or Nazriel "Ariel" Irham were looking for a career change then they probably should have put more effort into producing a quality piece of work, particularly if they are going to have to do some jail time for it.

On the flip side of this equation is Cut Tari. Apparently, she continues to breath the sweet air of freedom on the outside of a cell because she has been, and continues to be, cooperative. By confessing to being the woman in the sex tape does somewhat limit her options for being uncooperative.

Ho hum...

Ariel and Miyabi (and Luna Maya and Cut Tari -- Possibilities)...

No, no, no!

It is not what you are thinking or what you are hoping for. There is no new tape of Ariel and Miyabi to add to the "Ariel Does Everyone He Can" collection. This is a story about Ariel getting some support from someone all to familiar with the attitudes of some Indonesians to sex and sex tapes, particularly for celebrities. Although, to be fair, Miyabi (aka Maria Ozawa) makes making sex tapes her professional calling. As far as I can tell, Ariel is still an amateur film maker and producer learning the trade.

If you want to read about Miyabi and her exploits, or lack thereof, in Indonesia, then I suggest you use the search feature for this blog. There are plenty of posts and plenty of photos, happy hunting. If you want to read a little about Ariel and his sex-capades then you will find most of them have been posted this month, so just look in the right hand column under 'July 2010', happy hunting there as well.

This post includes some 'safe' screencaps of some of the sex tapes out there at the moment. They are available over at Asia One.

Now, according to Miyabi, the moral police should not be judging Ariel or his exploits too harshly. In fact, she has used Twitter and 'tweeted' that people should not judge a book by its cover. I am not sure what she means by that, but perhaps she is referring to Ariel's sexual prowess and abilities as highlighted rather explicitly on the tapes. Or she might be referring to something else.

The best part about the Miyabi tweets is that she has expressed an interest in getting to know Ariel better. So, it seems that if things do not work out in Indonesia, there seems to be an opening in Japan that Ariel might be able to fill (no pun intended). Miyabi does think that Ariel is handsome and that "his girls" are good looking. This does sound like it has potential for a major film!

Syekh Puji Goes To Trial (and gets acquitted)...

Syekh Puji went to trial in the Ungaran District Court charged with committing sexual abuse on a child. The sexual abuse charges stem from his marriage to an underage girl. I have written about this case elsewhere, and you can find those posts here.

In essence, the Syekh was facing charges relating to violations of Articles 81(2) and 82 of the Child Protection Law and Article 290 of the Indonesian Criminal Code. I also believe that there are charges relating to a violation of the Marriage Law. I have not seen the indictment or read the verdict dismissing the case.

However, the presiding judge in the trial, Hari Mulyanto, dismissed the prosecution case because, in his opinion, the indictment was incomplete, vague, and by default, flawed. Consequently, Mulyanto ordered that the Syekh was free to go and resume his life free of the charges laid. In that sense it is not really an acquittal, because in a technical sense the judge has issued a preliminary ruling stating that the case cannot go forward to trial because the indictment does not make the grade.

Prosecutors, apparently, intend to appeal the verdict. But, what is interesting was that the prosecution seemed to indicate that they will go away and improve the indictment. This suggests that the first time out the prosecutors did not bother to cross all the "t"s and dot all the "i"s.

Appeals in Indonesia generally require that there be new evidence available that was not available at the time of the trial or that there has been an error by the judge(s) in the application of the law. Unfortunately, prosecutors failing to do their jobs is not new evidence or an error in the application of the law.

There seems to be little doubt that the Syekh married an underage girl, and there seems little doubt that he consummated that marriage after her first period, what seems to be in doubt is the ability of the prosecutors to close the deal on this case.

Abortion in Australia -- A Survey...

A recent survey of 1873 electors in Australia showed that 57% of them support a woman's right to have an abortion "readily when they want one". The results of the survey suggest that a minority is dictating government policy on the legality of abortion in Australia generally, and in the states specifically. Victoria and the ACT have decriminalized abortion. WA has amended its laws. All other states and territories have abortion provisions on their criminal statute books.

It appears that politicians are more concerned about being seen to be pro-abortion than they are about being seen to be pro-women's rights.

Consequently, any moves towards decriminalizing abortion have been hampered by minority groups. So, perhaps democracy is not always as simple as the majority imposing their will on the minority. It would seem that in some debates that the minority quite often punches above its weight.

However, it is worth noting that in a similar survey from 20 years ago, the percentage of those that agreed with a woman's right to have an abortion if, and when, she wanted one was only 38% percent.

Queensland, according to the survey results, is the most pro-abortion state, with some 63% of respondents saying they favoured a woman's right to have an abortion. This is interesting because Queensland is currently pursuing a young couple who procured a miscarriage (sometimes reported as an abortion) by acquiring the drug RU 486 (this is not the morning after pill). What makes this interesting is that the young woman being charged is thought to be the first woman in more than 50 years to be charge with procuring her own miscarriage.

The actions of the woman and her boyfriend are illegal because RU 486 is only available at a limited number of medical practitioners. The RU 486 that was used in this case was sourced from overseas.

The abortion debate is an interesting one in Australia considering the studies show that growing majorities in the primary voting demographics support a woman's right to an abortion. This makes the arguments usually put forward by politicians that the electorate is not in support of a move towards decriminalization, wrong. Even more interesting is research that suggest more than 75% of politicians themselves are pro-choice.

The current study is available in the journal People and Place and published by the Centre for Population and Urban Research at Monash University.

Prita Mulyasari -- Defamation -- The Retrial...

The Prita Mulyasari defamation case, or perhaps "saga" is a better word, continues with the retrial commencing in the Tangerang District Court yesterday.

This case really does not contain enough legal issues of consequence for the prosecution to be pursuing this as some sort of test case for the provisions on defamation in the Information and Electronic Transactions Law or for that matter the overlap of those provisions with the ones contained in the Indonesian Criminal Code.

The saga is probably worth a PhD thesis, maybe it could be mine.

Brett over at Spruiked is always a man on a mission, and the Prita case is one he is quite vocal about.

If anything the case highlights the severe need for ongoing or continuing legal education in order to ensure that all legal practitioners are up-to-date with current legal developments and practice. Simply, this was not the case to run as a test case. Even more interesting is that in the retrial the prosecution has decided to lead with expert testimony from a linguist who admits on the stand that he has no real conceptual understanding of what defamation is in the legal sense.

The expert testimony of the linguist was simplistic at best; the contents of the email could be considered defamatory because there was a sentence that questioned the professionalism and politeness of the hospital staff. Ah, OK. But tell me you have more!

The idea that doctors can be unprofessional and hospital staff can be rude and impolite is hardly a revelation. There are probably more people floating round in the world who have a bad story to tell about the way they were treated in a hospital than those that have a good story to tell.

A visit to a few Australian websites and a good read of some of the news there would highlight that it is not uncommon for hospitals to be criticized for their poor service and professionalism. There have been a spate of recent cases over the last few years of women miscarrying in hospital toilets as they were made to wait for treatment.

The idea that Prita was treated unprofessionally and impolitely is not some kind of out of the ordinary shocking development. In any event, and as I have always maintained, even if by some magical alignment of the stars her email was defamatory, then the best course of action to defend the charge would be that the statements contained in the email are the truth.

The reality here is that Prita was diagnosed with dengue fever at Omni and after becoming fed up with the treatment she was receiving at Omni, checked herself out and into another hospital where she was diagnosed with mumps, treated and subsequently got well. At least, this is how I understand it. I am sure that if that is an incorrect understanding someone will inform me of that. And, then I will make a note here (as a postscript).

The fact of the matter is when you are sick and you go to the doctor you are expecting that the doctor will get the diagnosis right and treat you. A misdiagnosis can sometimes happen but all the same a misdiagnosis is a misdiagnosis and in that sense it is not unreasonable to question the professionalism of the doctor involved.

The Halal Products Bill -- Islamization by Stealth?

Whenever Indonesia debates a new law or an amendment bill that infringes upon civil rights or has been drafted to address a specific religious requirement, a parallel debate arises about whether or not the bill is an attempt at Islamization of Indonesia. Sometimes, the concerns raised are legitimate and sometimes they are not.

The morality based bills such as the proposed amendments to the Criminal Code which would ostensibly ban public displays of affection between men and women, including married couples, is one such example. Another example, was the passage of the Anti-Pornography bill, as the bill to all intents and purposes seemingly restricts the freedom of expression particularly in the arts. A further example is another bill currently before the House of Representatives (Dewan Perwakilan Rakyat / DPR) on film. This bill certainly ups the ante with respect to censorship and what is permitted to be made, let alone what might negotiate any censorship board.

However, it is the Bill on Halal Products that seems to have drawn the ire of many as a direct and not so stealthy attempt to impose Sharia law on all of Indonesia's citizens and not just the majority of the community that identifies as Muslim. Halal in a very general sense means that the product is one that is permitted for the purposes of consumption by Muslims.

This bill in essence sets out what must be done in order for a product to be classified as halal, and then once an application is made for certification as halal, and then how that product is to be packaged and labeled. The bill does not prevent the production, distribution, and sale of non-halal (or haram / prohibited) products. Once again, the bill sets out how a product comes to be classified and labeled as halal. Presumably any company seeking to have a leg of ham classified as halal is going to fail in their application. However, this does not mean that the leg of ham cannot be sold.

In many ways the halal symbol or label is no different from the "healthy heart" symbol that you can find on products that have successfully passed the certification process stipulated for the symbol to be applied. This is also similar for products that now carry symbols that say they are certified suitable for diabetics or people with high blood pressure or products that are certified dolphin safe.

The difference is that in most cases the symbols attached to products are certified by independent bodies and are not regulated in law beyond a very basic minimum. For example, in Australia there are laws that require that the claims of a product be substantiated. This would mean that if a producer offered a cure for cancer, then that claim would need to be substantiated. If it could not be substantiated then this would be a breach of the prevailing laws and regulations.

So, in that sense the bill is hardly Islamization by stealth. The adding of a halal seal to products will provide a guarantee to discerning Muslims that the product they are about to purchase meets some exacting standards with respect to a products halal-ness or lack thereof. Nevertheless, this might depend on how independent the certification process is and how independent those involved in the certification agency are.

Currently, it would seem that the Indonesian Ulama Council (Majelis Ulema Indonesia / MUI) will play a primary role as the peak Muslim body in Indonesia. Then again, how independent can the body be when its role is specifically to certify what is and what is not halal for a specific religion?

A far greater threat would be a local ordinance, such as the one recently pushed through in Bogor as it attempts to become a halal city, which prohibits the slaughtering of pigs within city limits. This would seemingly increase costs as any pork products would have to be brought in from other places and not sourced locally. An argument might conceivably be made that this ordinance is a breach of a constitutionally guaranteed right to not be subject to discrimination. Whether anyone picks up the baton on this one remains to be seen.

Going forward, it seems likely that this debate is going to arise ever more frequently.