The Courage of One's Convictions & Anonymity...

So much for only the one post in February!

I recently received an email from a dear friend and the unrelenting anonymous cyberbullying and cyberstalking that she is encountering on an hourly basis twenty-four hours per day. Why is this happening? For no other reason than holding an opinion different to those of the cyberbullies and being willing to share it with a view to ensuring that people are not only well-informed but to ensure that they are properly informed too.

The reality is that I cannot go into a whole lot of detail as the matter is subject to some real sensitive information. But, in a general sense I can get into the detail. In its most simple form, this is a case of one person blogging, social networking, and working under her real name and a host of pseudonyms and other anonymous posters attacking her on every front. In fact, it really is cyberstalking, wherever she goes these individuals are sure to follow.

And, this is the point of the title of this post. My personal opinion is that if you have the courage of your convictions and you truly and honestly believe in what you are standing for then you should feel the need for this to happen under your real name. If the pen-person-ship is ours then claim it as so.

The belief that you can remain anonymous and untrackable is a fallacy, particularly when you are making outlandish and absurd claims about government to government conspiracies, double-agents, and the sacrifice of insignificant individuals (in the sense that they are so unimportant in the big scheme of things that they warrant being thrust front and centre in this global conspiracy) to the alter of global politics.

Let's face it, when push comes to shove, governments have a lot of time and money to throw at uncovering who the anonymous and pseudonym-covered posters are. Unfortunately, the perfect laws are not in place in Australia to deter cyberstalkers and cyberbullies, but we will get there. Nevertheless, the reality is that defaming someone is defaming them and there are laws in place that can be used to see that it stops and that the perpetrators make their reparations to those that they injure.

I blog under my own name not because I want to be some sort of hero or because I want to throw caution to the wind and hell be damned, rather I blog under my own name because I believe in the things, the ideas, the views, and the issues that I talk about. I have the courage of my convictions and people don't doubt my passions or my beliefs (well, not all that often there are always cynics out there somewhere). If I have something to say about someone then I say it. It is that simple.

I am not going to spend 100s or 1000s of hours in compiling data to release a "Confidential - Not for Publication" report under a pseudonym and then publish it as widely as possible. Clearly, the report is neither confidential or not for publication, rather it is for public viewing and dissemination.

The truth is that if I believe in what I have researched and what is contained in the report is fact and beyond reproach then why not put my name to it. To suggest that the state will enter into a conspiracy with other states to silence me is delusional paranoia. Some more truth is that where the report attacks and defames an individual then there hardly seems the need for the paranoia. It is not as if the report is about the Head of State, is it?

To be clear, I do not have a problem with anonymous blogging or writing or doing these things under a pen name or the like. I do have a problem if one is trying to use anonymity and pseudonyms as a cover to attack, bully and harass people because they have a different view to your own.

What it the point of the post. Well, how can we expect to educate our children on the stupidity, silliness, inappropriateness, and danger of cyberstalking and cyberbullying when adults themselves cannot behave in appropriate ways and show good character? How do we expect to help our children develop honesty and integrity in an ever-increasing technological worlds when the role-models they see cannot do it for themselves.

It is time to leave the naivety behind as it relates to the dangers of cyberbullying and cyberstalking and start being truthful to ourselves and those that we care about.

Cyberbullying and cyberstalking is not on at any time, it is not welcome at any time, and it will never be a solution ever!

Those of you out there engaging in this atrocious behaviour, get over yourselves, get a life, and get on with living your own and leave the rest of us to do the things that need to be done. The stuff being written, spoken, shown and disseminated anonymously is nothing more than cowardice with a capital "C".

This 'information', in the weakest sense of the word, is being disseminated anonymously as the perpetrators are more worried about the "truth" of their allegations and the veracity of their allegations that they feel safer hiding behind the veil of anonymity. But rest assured it will not be long till that veil becomes sheer and your true identities will be uncovered, or unveiled perhaps.

Sweet dreams...

Thus endeth the sermon!

Ariel Going to Trial on Monday...

The fact that this case is going to trial is symptomatic of the ills of the Indonesian justice system. It is also indicative of why most Indonesians are skeptical of claims that there has been serious reform happen in the legal system or is likely to happen. This is particularly so on the coattails of Gayus Tambunan who has been able to take at least 68 trips outside of his cell by paying off the relevant officials.

Anyways, Nazriel "Ariel" Irham of Peterpan fame and more recently of Peterporn fame is going to trial on Monday (22 November 2010) for his alleged role in the distribution of a couple of sex tapes starring himself and Luna Maya and Cut Tari. The trial will be in the district court in Bandung because the alleged act, distribution, took place in Bandung. Interestingly enough, the police have not been able to determine where the actual sex tapes were made.

Ariel has been in detention since 22 June 2010. It is time that he is either released of prosecuted. So, in that sense it is a good thing that this is heading towards a resolution with a trial date set. It is sad that it is going to trial at all.

Unfortunately, the trial is to be closed. According to the Acting Attorney General (well, an anonymous source), pornography trials are closed-door affairs. The rationale, presumably, is that the titillating details would be too much for most Indonesians and they would be influenced in a negative way by all the "perversion" that will come out as evidence in the course of the trial. The only real problem with that is that most people who would be watching the trial have already watched the 'offending' sex tapes either online or on their mobile phones.

There is no reason for this to be a closed trial. This case does not involve minors. The fact that it is closed gives rise to claims that the trial will be unfair. To ensure fairness, the appropriate course of action is to have this hearing as a public one. This is particular so considering that the prosecutors have backed away from pursuing charges for the production of the sex tapes and will be proceeding exclusively on the distribution charges as they are described in the 2008 Anti-Pornography Law.

If Babul Khoir Harahap is to be believed, then the whole prosecution case rests on what Ariel did not do. If this is true, then why is it that Luna Maya and Cut Tari are not being prosecuted at the same time? Simply, they also new about the sex tapes and did nothing to prevent their distribution.

When it is all said and done this is just a couple of sex tapes. There are millions of them out there in cyber space. Yes, there may be some morality questions to be argued here. Maybe there are even some religious concerns about pre-marital and adulterous sex. Yet, the law does not criminalise people for filming themselves in the throes of sexual gratification or orgasmic climax. The law does criminalise distribution if the perpetrator of that distribution is pro-active and consciously doing so. However, the law does not criminalise the failure to prevent distribution of a sex tape where you were unaware of the intended distribution.

Therefore, it would seem that the prosecution really needs to be able to prove that Ariel handed off the sex tapes to Redjoy, and that he knew Redjoy (Reza) was going to upload them to the internet. As far as I recall, Ariel and his amateur porn colleagues have always maintained that they were the victim of a crime, theft. On face value, it would seem that the prosecution is between a rock and a hard place in terms of proving this. Perhaps, there is a need for this to be a closed hearing!

Ho hum...

Rape by Deception -- An Update...

It is not always fatal to rush to judgment on a limited set of facts. However, it is important if you rush to judgment that you have the courage and honour to report the rest of the facts surrounding a case when they come to light. There is a sense of moral responsibility with respect to setting the record straight.

This brings me to the case of rape by deception. Israeli law allows a man to be charged and convicted of rape by deception for lying about who he is in order to gain sexual favours.

The law has been used to convict a number of Israelis who lied about their socio-economic status in order to bed a woman. This absurd law really came under the harsh spotlight of international media scrutiny when Sabbar Kashur was convicted to 18 months in jail for the rape by deception of a young Jewish woman.

The international media at the time, as well as many bloggers and other social media commentators, wrote this off as some form of anti-Arab overt racism. However, the case is far more complex and sad than it first appeared. There are very real arguments that race played a part in this sordid affair, but that it may have in fact worked in Kashur's favour rather than against him. There are always two sides to any story, and I mention that the commentary I was making in the original piece was based solely on the exclusive story of Kashur.

The Hebrew press in Israel has recently taken up the other side of the story, in this instance the woman who was raped. You can find that story at Haaretz online it is in Hebrew. You can find a translation of the article and some commentary on it at Mideast Youth blog. The best English account of the growing alternate case, alternate only in the sense of it being the other side of the story, can be found in an excellent piece written by Lisa Goldman.

There is always the temptation when you get something so wrong that it is embarrassing that you take all necessary measures to remove the embarrassment and pretend that it did not happen, and then hope that no-one ever finds out about it. However, the original piece that I wrote on this case will remain where it is. It is, and will continue to be a lesson, on remembering that there is always an alternate story out there waiting to be written. In any event, I stand by my belief that the law is absurd (at least for now).

The other side of this story is that Kashur brutally raped the young Israeli woman and left her bleeding and hysterical in the building in which he forced himself upon her. The reality is that he was charged with that violent sexual assault. The truth is that the prosecution realised that the victim in this case, the young woman and not Kashur, was going to be problematic as a reliable and credible witness if the case went to trial. Her testimony was riddled with inconsistencies and part truths about her life that the defense would have been able to exploit mercilessly.

The young woman has a story, and it is a tragic story. It is, and must be, one that is noted here. The young woman was a victim of incest, she was raped by her father from the age of six. She worked as a prostitute, and at the time of the violent sexual assault perpetrated against her by Kashur, she was living in a woman's shelter. It is not rocket science to understand that this is a young woman with serious emotional and mental issues to deal with. It is also not rocket science to understand that her life story has left her vulnerable to exploitation by others.

It would seem that she placed her trust in a man that had no intention other than to see whether or not he could extract a sexual favour or two. And, when the young woman resisted, he decided that he could take those favours even if she resisted those advances. A man forcing a woman to have sex with him by any definition is rape. No means no; no ifs, no buts and no maybes.

What is most interesting about this case now that more of the facts have come to light is that the prosecution and the defense seemingly reached a plea agreement in proceeding with this case. This is interesting for many reasons.

First, considering the vulnerability of the victim, why did the defense agree to a plea deal for the lesser charge of rape by deception? It would seem that with such a vulnerable witness that the defense could have continued to pick her testimony apart and that there would have been a good chance that Kashur would have escaped punishment for his crime.

Second, and conversely to the first, why would the prosecution and judges consider the plea deal when it would seem that this was in fact a case where a violent rape had occurred where the perpetrator must be punished, and severely for the crime he has committed.

The answer probably lies in the reality. The defense would undoubtedly have been worried that the sympathy for the victim may have overridden the inconsistencies in the victim's testimony and then resulted in a very long custodial sentence. In order to avoid this the defense agrees to plead out to the lesser charge. For the prosecution and the judges, the belief would undoubtedly have been that this is a man who is a violent rapist who must be punished. However, the inconsistencies in the victim's testimony are going to make it very difficult to secure a conviction, so plead out to a lesser charge. It is better that he be punished a little than not at all.

Yet, despite the machinations in this sorry and sad case, the prosecution and judges were not able to avoid being labeled as racist for jailing an Arab for a crime that he claims he did not commit and only pleaded guilty to in order to avoid a long custodial sentence. However, as more details and facts come to light, then perhaps perceptions about who the real victim is in this case can be rectified and the record set straight once and for all.

This is a sad case, but it has been an illuminating and educational one on many levels for me.

Perhaps I will revisit this issue in the future. I feel that there is more that needs to be said, I am just not sure at the moment what it is that needs to be said.

Begging -- Employment Opportunity...

This is another one to file away in the "already know that file". The idea that begging is an employment opportunity, and a lucrative one, is an idea that has been around for as long as any of us care to remember.

And, Ramadan always sees an increase of people begging on every street corner. Ramadan generally sees more people hungry, but also sees them in a more generous and giving mood. So, this time of the year is a "lucrative" one in that there are more people giving.

The fact that some individual has worked out that by coordinating the efforts of individual beggars into a collective and then taking a percentage of the daily take can make them a tidy sum, really is not rocket science. Anyone with a rudimentary understanding of economics could probably work it out.

It is estimated that some 31 million Indonesians live just on or under the poverty line. The arbitrary poverty line for Jakarta is IDR 211,726 per month. I am not sure why it is IDR 211,726 and not just rounded up or down to IDR 211,500 or IDR 212,000. IDR 200 does not buy very much in Indonesia nowadays. Now, this is the kicker, and also why begging is seen as a legitimate employment alternative. It it further estimated that a beggar of average skills can make up to IDR 280,000 per day on average in Jakarta by doing nothing more than sticking the hand out with the hope of some small change.

It is true that beggars can amass considerable incomes and do relatively well. It must also be noted that they are not paying tax on this cash income (unless of course they are declaring it). I once new this bloke who used to beg at the traffic lights not far from the place I was living. He used to use a skateboard to get around. He had polio legs, and being poor meant that a skateboard was the choice he had when he was younger. Anyways, one day I took it upon myself to ask him about "his story". I am glad I did, it was enlightening to say the least.

The fella was born into what many of us would call "dirt poor" circumstances, which resulted in childhood polio and little school-based education, but a broad education know as "life" or the "school of hard knocks".

Yet, here was this fella who could have been twisted and bitter about the hand that he was dealt, but he chose not to be. His begging ways had started early and continued now into his early 50s. He had moved from a slum area in North Jakarta to a home in Bandung. He was now a part-time beggar in that he worked a roster of a "week on" and a "week off". He had himself and his family some small digs in East Jakarta.

Yes folks, a beggar with two houses! He had earned considerable sums of money. His children were well looked after and better educated in a formal sense than he was. Hence the reason this story in The Jakarta Globe recently that begging was a lucrative employment opportunity has been filed away in the "already knew that" file.

The point though is not to perpetuate the myth that beggars are doing it easy and that begging is a lucrative past time that doubles as real employment. It is a furphy to suggest such. It is government double speak designed to turn the public tide against beggars and the difficulties that they face in order to survive. In trying to turn public opinion against the poor and marginalised the hope is that the government can gradually remove these people through criminalising their activities. In this case, activities must be translated as doing whatever they can to survive.

The cold, hard reality that the government would sweep under the rug of truth is that for every "beggar coordinator" success story there are many, many, many beggars who are used and abused by the system that should be protecting them and not criminalising them.

Do not be fooled by the Government of Jakarta's talk of begging being employment. It is not employment! And, speaking of it like it is employment is irresponsible and misrepresents the desperation that many beggars face each and every day.

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)

Is It Just A Cartoon?

I am not going to re-post the offending cartoons here. For no other reason than I did not bother to save them. I did not find them particularly funny and I did not see them as making any real political statement worthy of debating.

The issue for me is one of how seriously must this matter be dealt with? When does a cartoon cease being a cartoon and become something else that is worthy of this much debate? What are the legal implications and ramifications considering the government seems certain to pursue this to its conclusion?

The cartoons that were hosted on the Wordpress hosted blog depicted the Prophet and his wives. The accompanying text was written in Indonesian. Therefore, the assumption is that the blogger is Indonesian and that they are based here. I am not sure how this conclusion has been reached. Perhaps there is more information that has not been released to I have yet to see on this matter. I know quite a few non-Indonesians that can read, write, and speak in Indonesian.

The response to the cartoons has seen Wordpress close off the link. There has been demands that Wordpress divulge the identity of the blogger or perhaps information that might lead to the uncovering of the identity of the mysterious and currently anonymous blogger. There have been claims that if Wordpress does not provide this information that the Indonesian National Police Force's digital forensic squad will get in on the act and find the information itself.

However, it is the responses from others that are worthy of some consideration.

Muhammad Ismail Yusanto, spokesman for Hizbut Tahrir, has declared that shutting down access is not enough. The government must conduct a full investigation and when the blogger is uncovered he must be punished according to Islamic law and that the death penalty must apply once the blogger's guilt has been determined.

Hidayat Nur Wahid, who maintains a significant affiliation with the Prosperous Justice Party which he once chaired, has described the cartoons as "an act of terrorism against the Muslim people," and something that the authorities must deal with firmly.

So, I guess my question is, "when is a cartoon not just a cartoon?"

Heath Ledger and Mary-Kate Olsen

The Heath Ledger story seems unlikely to fade away in the near future, particularly as The Dark Knight does a roaring trade at the box office. It is also likely to continue as the buzz for the first posthumous Oscar since 1976 (Peter Finch for Network, if I am not mistaken) builds. The story will also continue as long as Mary-Kate Olsen maintains her silence, refuses to talk to investigators, and asks for immunity from prosecution if she does talk.

The facts that we do know is that the masseuse that found the unconscious or dead heath Ledger made calls to Mary-Kate before she called 911, we also know that the masseuse called again after paramedics arrived, and we know that Mary-Kate sent around her personal bodyguards. Mary-Kate's lawyer is maintaining that the starlet has told investigators all that she knows and therefore any further questioning is unwarranted and unnecessary.

It would seem that the investigators do not believe this and have gone so far as to obtain a subpoena. The subpoena by its very nature will compel Mary-Kate to testify before a grand jury if one is convened. The fact that investigators have gone to the trouble of getting subpoenas would suggest that a grand jury will be called. But law is a game in that sense and the threat of a grand jury is like shaking a tree and seeing what falls out.

It would seem that the investigators into the unnatural death of Ledger suspect that at least some of the drugs in the lethal cocktail of drugs that killed him were illegally obtained. The suggestion is that the prescriptions used were forged. The interest in Mary-Kate and the desire for investigators to follow-up with her could infer certain things but the allegations where these inferences are likely to lead have not been made public. Yet, most people should be able to join the dots on this one.

The claim for immunity immediately suggests that there is some degree of illegality involved that requires the maker of the statements, in this case Mary-Kate, needs protection from. I would have thought pleading the Fifth might have been an option in terms of not incriminating yourself at all. It is also interesting because Mary-Kate is the only person who investigators have wanted to speak to who has been reluctant to talk or who has claimed a need for immunity to be granted before speaking. Nevertheless, the other possibility is that all publicity is good publicity and drawing this thing out maximizes exposure.

There are drawbacks to maximum exposure like that the more coverage this gets the more it draws people out of the woodwork and then allows the investigators to put together a chronology of events even without Mary-Kate's testimony.

I enjoy watching the legal machinations unfold. After all it is my thing! My expertise is in this area.

Maybe there will be updates on this as things unfold or unravel, depending on which side of the fence you stand!

Justice Michael Kirby -- Criminalizing HIV

Australian High Court Judge Michael Kirby has spoken about the growing pressure on States to criminalize the transmission of HIV. Justice Kirby while addressing a criminal law conference in Dublin was speaking about the rising rates of HIV infection in Australia and the pressure to see those that transmit the virus punished.

It is Justice Kirby's view that criminalizing the transmission is going to have a a negligible effect on transmission rates, if any effect at all. The idea of criminalizing the transmission of HIV is likely to be counter-productive as this would be best described as a punitive measure.

The money that the State is likely to have to throw at this to make the policy of criminalizing the transmission of HIV would be better spent on research and development that leads to a vaccine and eventually a cure.

The fact that HIV is no longer the immediate death sentence it once was because of significant advances in the effectiveness of antiretrovirals and other drugs has meant that people have become much less cautious in protecting themselves. Perhaps psychologically the idea of a chronic illness is more palatable and less scary than rapid progression to death from an AIDS related illness.

I know Justice Kirby and I once wanted to clerk for the man. Justice Kirby has lost friends to the disease. So, in that sense he has a personal perspective on this.