Prosecutors Say They Have Done Enough: Ariel Guilty!

Rusmanto the lead prosecutor's response to the defense claims in Nazril "Ariel" Irham's distribution of sex tapes trial was one for the ages:

“We ask the panel of judges to reject the entire statement of defense put forward by lawyers for the defendant.” And, “We stand by the sentencing demand of five years.”

To be honest, every prosecutor who is worth their salt would stand by the arguments that they have made when leading the court through their case. However, the opportunity is one to, in essence, surrebut the defense case. The simple strategy would have been to take each of the defense arguments one by one and rebut them.

For example, the defense argument that the sex tapes were made in 2005 or 2006 and therefore a law passed in 2008, such as the Pornography Law, cannot apply retroactively. The prosecution, for example, might want to have argued that the actual offense of distribution did not occur until 2010 and therefore the law is not being applied retroactively.

The difficulty though of a closed hearing is that it is hard to get an exact account of what the arguments were. With a bit of luck the 'documents' will become publicly available in the near future, or at least "available", for perusal.

A decision in the case that has gripped the nation since June 2010 should be handed-down by 31st January 2011. This is a case that seems to beg for an appeal. So, no matter what the verdict is, this case will be appealed. If Ariel is acquitted as he must be, then there is no doubt that the prosecutors will appeal. If by some unreal twist of fate Ariel does not walk free, then it goes without saying that the defense will appeal. It would be interesting to see how a time served sentence would be viewed by either side.

I wonder how large a police presence will be required in Bandung to keep order? Let's face it, this case has generated extreme feelings on both sides with fans demanding an immediate release and hard-line Islamic groups demanding that Ariel be sentenced to death.

Well, it is almost time for police and law enforcement officials to find another case to distract public attention and scrutiny away from issues that really matter like the ongoing Sidoarjo mud extrusion or the Gayus shenanigans...and it is probably time for me to find something else to follow too. Any suggestions?

How Much Time Should Ariel Do For A Sex Tape?

Here is the crux of this case: "have the prosecutors proved that Ariel was involved in the distribution of either the tape of him having sex with Luna Maya or the tape of him having sex with Cut Tari?" The answer must inform the judges when making their decision. Based on the evidence which has been adduced in court, the answer to this question is "no". The prosecutors have not satisfied the burden of proving Ariel guilty of the charge for which he has been tried.

This trial is not about making and starring in an amateur porn film. Morals aside, it is not a crime to make a sex tape of yourself and another consenting adult in Indonesia. It is illegal to distribute that tape.

Despite the court being closed for the duration of the trial this must not be construed as it being secret. The truth of the matter is that both sides were more than willing to discuss on the record what their respective cases were to the mass media. So, getting a handle on who did what and with whom has not been difficult. For example, the gist of the defense was that the prosecutors had no evidence linking Nazril Irham (aka Ariel) to the alleged distribution of the sex tapes. And, O. C. Kaligis, one of the lead defense lawyers was quoted as having said as much to The Jakarta Globe. The whole defense case ran to some 107 pages (of which I hope to get a copy). The word from the man himself was contained in a 3-page plea which Ariel read to the court. Ariel gave this plea a name, "Nazril Irham, a victim of brutality". Ariel's statement would be a good read because it is hard to imagine what brutality he has suffered.

It is fair to say this is not the "test" case for the laws being argued before the courts. There is little doubt that Ariel has been humiliated by having this case played out in public, there is little doubt that the man has suffered for having his freedom curtailed whilst being detained, but I am not sure that he has been brutalised. Nevertheless, the man should never have done a day in detention. And, a guilty verdict would be unsound and would be an injustice. But, if Boy Afrian Bondjol is to be believed, then brutalisation claims relate to the idea that his privacy has been invaded and that process in the public eye is one that is brutal. Once again, humiliating rather than brutal.

For me, this case has always rested on whether the prosecution could prove that Ariel was involved in the distribution of the sex tapes in which he starred. The argument that he did not doing anything to prevent their distribution is the same as actively distributing them is not sustainable. The assumption is that he knew the tapes had been stolen and that he allowed, in fact encouraged, them to be uploaded to the internet. The balance of evidence would suggest that Ariel knew the sex tapes existed but did not know that they had been stolen.

Yet, the other key issue is whether the Pornography Law can be used in this case. There are interesting legal arguments to be played out here and some serious hair-splitting can occur. By most admissions the sex tapes were made in 2005 or 2006. This by itself suggests that the sex was not that good seeing no one can quite recall when the deeds were done. But, on a more serious note, 2005 and 2006 are both years that passed prior to the enactment of the Pornography Law. Recent Indonesian case law is unequivocal in stating that Indonesian laws cannot apply retroactively. Admittedly, this was a terrorism trial, but the principle was sound.

Although, the Pornography Law was passed in 2008 and therefore seemingly cannot apply to the production of these tapes, there is a different argument in play with respect to distribution. Distribution allegedly occurred in 2010 when the sexual performances of Ariel, Luna Maya and Cut Tari were uploaded to the internet. Therefore, there are arguments to be made that the actual violation of the law occurred within the parameters of the Pornography Law.

The legal reasoning of the decision once it is finally handed down should make for some real interesting reading.

Ariel: The Farce Continues...

Wake me up when this trial is done and dusted, please.

I have been away for a little bit more than a week. It has been nice to not read a whole lot of news. It has also been nice to be away from an internet connection, and the temptation to see what frivolity came about in the latest trial hearing in the Peterporn saga. Yet, to be honest, I feel that seeing I started this "follow it through to the end" deal, I should in fact follow through. So, holiday or no holiday, I am back posting a running commentary on why this case should never have gone to trial.

The most recent reports have covered the testimony of Hadi Supeno, the former Head of the Indonesian Child Protection Commission (KPAI). Supeno cannot be faulted for his commitment to protecting Indonesian children. He is most definitely, at least at face value, committed to seeing that Indonesian children are protected from all manner of harm. However, he is not much of a public relations whiz. He is not good at selling the message.

The primary problem for Supeno is that he talks in generalities and the grand schemes of things. He tends to downplay the "facts" or the "science" in preference for sweeping statements about how "he knows" what will harm Indonesian children and whatever he states must be accepted as is. Unfortunately, and perhaps beneficially for Ariel, no everyone does.

According to Supeno, there are four major impacts that children will encounter as a result of the release of the Ariel / Luna Maya and Ariel / Cut Tari sex tapes, namely: the videos will increase the sexual desires of children, the videos will effect the social and mental development of children, the videos will encourage children to replicate the behaviours they have watched, and the icing on the cake, the videos will lead to an escalation in the criminal activities of children.

Ah, evidence? Boy Afrian Bondjol, Ariel's lead lawyer in the case, questioned Supeno on the four assertions he made in court, and rightly so. Supeno could only offer up that "this" is what he knows. But, Pak Hadi, you really need to stump up some research. Surely, there must be some research that supports the proposition that children who watch pornography are more likely to commit crimes. Or that children who watch porn are more likely to become sexually active at a young age. Or that these increasing numbers of sexually active children are becoming rapists and sexual predators. Any research would do.

Seriously, if this is the best that the prosecution has to offer up as supporting evidence for their desire to see Ariel jailed for up to 12 years and fined a couple of billion rupiah, then one really does need to question the wisdom of bringing this case to court. There is no justice being served here. There is only a desire to deflect public attention from more serious criminal cases and matters that continue to flounder in the deep dark abyss that is the Office of the Attorney General.

Once again, the man made a sex tape...so what? If this "case" was dropped like it should of been then people would no longer be talking about it. So, for that reason alone, perhaps there are arguments here that the Office of the Attorney General and the courts are complicit in keeping this "morally questionable conduct" by Ariel in the public eye. Why would they want to be doing that?

Ariel: The Trial Continues...

The trial continues...

The latest hearing of the "Ariel Does Indonesian Celebrities" trial was a public one. The fact that the hearing was a public one was not all that surprising in the big scheme of things. In essence, the hearing was merely a formality in that the judges were handing down their decision on the objections (eksepsi) of the defense to the prosecution's case. From what I can tell, the objections were contained in an injunction application.

The scenic District Court of Bandung is the place where the nitty gritty of this trial is to be played out. The crux of this case is whether Ariel did anything to prevent the distribution of the sex tapes he allegedly shot with Luna Maya and Cut Tari, and if he did do anything whether it was enough to absolve him of responsibility for the eventual distribution of the sex tapes.

According to the presiding judge in this case, Singgih Budi Prakoso, there is enough to proceed with the calling of witnesses. It would seem that Singgih is leaning towards the arguments that Ariel did not do enough to prevent the distribution.

Obviously, Afrian Bonjol, the lawyer for Ariel, was of the view that Singgih did not give sufficient thought or legal reasoning when rejecting the objections. Nevertheless, Bonjol has stated that Ariel accepts the decision of the judge and is looking forward to proving his innocence as the trial goes forward.

The next hearings for this trial are set for 13 December 2010 and 16 December 2010.

Justice -- Indonesian Style?

Sometimes there are certain events that just leave you shaking your head and saying, "what were they thinking?"

This is one of those moments. In the grand scheme of all things Indonesian the theft of three pods of cacao beans would seemingly rank fairly lowly on the justice meter. This is especially so considering the current turmoil engulfing Indonesia's law enforcement agencies and government with respect to the KPK vs. the police and AGO spat, and the developing mess known as the Bank Century scandal. However, it seems that if you steal three beans then justice is swift, but if you attempt to bribe public officials and / or participate in the suspect use of IDR 6.7 trillion then justice might not be so swift.

Now this is a story of Minah, a 55-year-old woman, who lives in Banyumas, and who helped herself to three cacao bean pods from a local plantation. The total value of her huge haul was about IDR 1,500. To give my non-Indonesian readers an idea of value here, that is about USD 0.15 or AUD 0.18. This is hardly the crime of the century, particularly in the Indonesian context.

However, the plantation and the law enforcement agencies in the relevant area decided that this was the perfect crime for making an example and educating the public about criminal activity, and the need to stop crime in its tracks. I am sure that there are many others out there who would find it hard to believe that this is the crime to educate the masses about the ills of criminal activity.

The Law and Human Rights Minister has gone on the record to suggest that this case is an embarrassment to Indonesia and her law enforcement agencies. Specifically, the Minister believes that law enforcers need to embrace humanitarian principles. Indeed they do, but they should not also turn a blind eye to criminal activity. The question is really one of degree, and particularly how this event of theft could have been dealt with in a more appropriate matter.

Ultimately, the District Court at Purwokerto handed down a 45-day suspended sentence. The sentence stipulates that Minah cannot commit a similar criminal offense within three months from the date of conviction. If she does then she will be required to serve her 45-day sentence.

Probably what the Minister should be more concerned about is that Minah represented herself. The law requires that all people appearing before an Indonesian court be given the opportunity to have legal representation. If an individual is incapable of paying for that legal representation, then it is to be provided on a pro bono basis. And, perhaps even more concerning is the assertion that Minah was encouraged to plead guilty to the crime without legal representation present as the prosecutors stated that it would be easier for her and her treatment would be more lenient.

I do not have a problem with the idea of plea bargaining. However, this needs to be done in a manner that people who have no experience of the legal system are not rail-roaded into making confessions in order to see leniency.

A suspended 45-day sentence is a little harsh for what amounts to an IDR 1,500 theft. This could have been easily settled out of court by getting Minah to pay compensation to the value of the seeds taken. The reason she provided to the court as the motivation for her crime was that she wanted to plant the seeds in order to grow her own cacao plants. Assuming this were true, then the plantation firm missed a perfect opportunity to put together a community cacao development program where the company provides seeds to poor locals, and they could have made Minah the first recipient of that community initiative.

Yet, the infinite wisdom of the pencil-pushing corporate types was, "this is a perfect opportunity for us to educate the masses about small-scale theft!" And, I might add, the perfect opportunity to show the community that we are here only to rape and pillage your land, make large profits, and then leave you with nothing, which sounds a little bit like a public relations nightmare.

With cases like Minah's there is little wonder that Indonesians are generally not convinced that the justice system works fairly for all citizens.

Syekh Puji and the Office of the Attorney General...

The Office of the Attorney General (AGO) has stated that it intends to appeal against the preliminary decision handed down by the Ungaran District Court in the case of child sexual abuse against Pujiantocahyo Widianto or Syekh Puji as he is known by his followers.

The Ungaran District Court dismissed the indictment for being incomplete and vague. The rationale of the court was that the indictment failed to detail explicitly how and when the offenses were committed. Presumably, the prosecutors failed, according to the court, to get into the nitty gritty of detailing what type of sex was had, when the sexual intercourse occurred, and where. Any amended indictment that seeks to satisfy the court in this regard is certainly going to make for interesting reading.

Albeit, it seems that the trend to explicit detail in indictments regarding sexual activity has already been started by the AGO in the case against Antasari Azhar in the South Jakarta District Court. The indictment read out by the prosecutors in the Antasari case caused some controversy as it was the first time the sexual practices of a former public official were entered into the court records. The indictment detailed Antasari's need for some hand relief (also known as a happy ending or being masturbated) from someone else's wife. For which he paid USD 500.

Back to the Syekh. The AGO is going to appeal to the Central Java High Court seeking the court to overturn the ruling. If they are successful in their appeal, then the Central Java High Court is most likely to order the matter to proceed in the Ungaran District Court. The appeal is based on a cause of action that the court / judges erred in their application of the relevant laws. Simply, the indictment is not flawed but the legal reasoning of the judges is flawed in this case.

The dismissal of the indictment against the Syekh poses an interesting dilemma. The girl in this case is a girl at just 12-years of age when the Syekh married her. So, there is seemingly a prima facie case on which to proceed. The dismissal of the indictment, by default, says that there is no case on which to proceed. Therefore, the dilemma is whether or not this dismissal can be read as condoning and legalizing pedophilia in Indonesia?

It is clear under the marriage law that a child of 12 years of age cannot marry. It is also pretty clear that the parents of a 12-year-old would encounter some legal obstacles in condoning such a marriage. The Child Protection Law explicitly states that a child is a child until they reach the age of 18. So, to allow this decision to stand unchallenged sets a bad precedent. The AGO has an obligation to pursue this through higher courts.

Interestingly, it would seem that the argument that the practice of marriage according to the rules of Islam trumps any national laws that are in place that would seemingly prohibit such practices. There is some debate about whether Islam of the 21st Century still condones the marriage practices of the 7th Century as they relate to child brides. However, the Ungaran District Court decision has added a new dynamic to the framework of the argument.

It would seem though that, at least in the interim, the Syekh is free to go about his daily business as a handicraft exporter and husband to a child bride.

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.

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.

People Smuggling -- Indonesia...

The Cobra seems destined for jail. Ali Cobra who also goes by the aliases Ali Kobra, Labasa Ali, Ali Basa, and Sultan Ali has been characterized as one of the main men of the people smuggling scene in Indonesia. Ali Cobra was arrested back in May as part of a joint Indonesian and Australian operation. The charges are not related to the people smuggling activities as the laws are not available in Indonesia.

The prosecutors trying the case in the Kupang District Court have asked for a four year prison sentence and a IDR 15 million fine. Both of these numbers seem a little on the light side considering the crimes committed. However, when considered in light of the charges leveled at the Cobra, then they are within the expected scope. This is because the charges relate to assisting in the mass break out of asylum seekers from a detention center in West Timor and then facilitating them onto a boat headed for Australia.

The boat eventually sank and nine asylum seekers drowned.

Interestingly, Cobra has not employed a lawyer. He has asked the court for leniency when it sentences him on 9 September 2009 as he has a wife and children living in Sulawesi who need him.

Prita Mulyasari -- Judicial Review of the Banten High Court...

I like OC Kaligis. He is a passionate about lawyering and he has contributed lots to Indonesia's ever-expanding mooting community, which is something I am passionate about as well. However, the desire to seek judicial review of the Banten High Court decision that orders the Tangerang District Court to retry the Prita Mulyasari defamation case is a case of barking up the wrong tree.

To be clear, I do not think that this case should have been heard in the first place, civil or criminal, however now that it has, it is an excellent test case and the team from OC Kaligis' law offices would be better to focus on the manner in which they could conceivably contribute to setting an Indonesian legal precedent. Yes, Indonesia is a civil law country and precedents do not play a big part, I have heard it all before. In a civil law country like Indonesia that is trying to forge a strong reliance on the rule of law means that a precedent like the one that is possible in this case would be a significant achievement, particularly for legal and legislation certainty.

The OC Kaligis team in pursuit of "justice" is going to lodge a brief at the Supreme Court to have the Banten High Court's decision judicially reviewed. A very basic and general analysis of Indonesian law would require that the Banten High Court decision include an error in application of the prevailing laws and regulations or there is new evidence that would render the verdict unsustainable if the court had had access to that evidence at the time the decision was made.

The decision of the Banten High Court appears to be on solid legal grounds. It does not appear to have erred in the application of prevailing laws and regulations with regards to the decision handed-down. Without having read the brief, it is hard to see what new evidence might have come to hand that would render the verdict unsustainable. Although, one of the lawyers from the Kaligis team suggested that he hoped the Banten High Court decision was not influenced by factors other than the prevailing facts in the case. So, maybe the infamous court mafia weaved its considerable magic?

Nevertheless, OC Kaligis is doing his job by seeking a judicial review. This is in the sense that a lawyer must explore every possible avenue that is available to their client in the pursuit of not only justice, but to prove their client's innocence. In any event, the Supreme Court has a history of interesting decisions that overturn lower court decisions. So, an appeal to the Supreme Court could be a winner for Kaligis and his team if the are holding the "right" ticket in the lottery.

I have always argued that the best possible outcome for Prita would be to prove that the defamation did not occur. Or, if it did that there are defenses available, specifically that what was contained into the letter to friends that found its way onto several mailing lists was factually correct. Simply, you cannot defame someone or an institution with the truth. The truth is as it is, truth!

You know there will be more on this as it comes to hand.

Blasphemy In Indonesia...

The Indonesian Criminal Code defines blasphemy in Article 156. The article is often used to control "deviant" sects and cults. Generally, deviant is any practices that do not conform to an accepted norm. Some of these sects or cults are just plain bizarre, but the more interesting part is probably that they attract followers or believers.

One such cult is the Satria Piningit Weteng Buwono or the Chosen Warriors from the Belly of the Earth. Agus Noro (aka Agus Imam Solihin) was found guilty of blasphemy by the South Jakarta District Court. The gist of the charges set out that the Noro led sermons in his underwear and required all his followers to participate in orgies. Noro had managed to gather some 35 people as followers of his faith.

However, the blasphemy charges related to his blaspheming of Islam. It seems that the biggest crime that Noro committed was to instruct his Muslim followers not to fast and pray at the times required under the tenets of the Islamic faith.

Ultimately, Noro was sentenced to two years and six months in jail. The presiding judge in the case, Judge Haryanto, said that the sentence was less than the five years demanded by public prosecutors because Noro had retracted his statement that he was the incarnation of God (or refused to accept the charge as laid out by the public prosecutors). This knowledge, or spiritual guidance, allegedly came to him in a dream. The dream or vision was provided by Indonesia's first president, Soekarno, back in 1999.

A meagre 35 followers hardly seems like a threat to the established base of Islam in Indonesia. The fact that in one of the world's largest democracies that people are still being jailed for their beliefs and the manner in which they believe in their god or gods shows that Indonesia still has some way to go. The expectation is not perfection, there are no states in the world that are perfect in this regard. However, considering the myriad of other problems afflicting Indonesia, it just seems that the resources dedicated to putting Noro in jail could be better used elsewhere.

Where the religious practices of organizing orgies and allowing minors to either participate or watch are breaches of the law, then it would have been possible to arrest, prosecute, and ultimately, jail, Noro without having to resort to the blasphemy card.

Interestingly, Noro chose to represent himself and without the assistance of counsel.

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

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

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

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

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

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

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

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

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

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

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

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

Prita Mulyasari -- The Case Continues...

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

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

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

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

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

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

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

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

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

Underage Gambling in Indonesia -- Big Time Crime?

Gambling is illegal in Indonesia. This does not mean it does not happen. There is probably a case to made for instances of gambling and then gambling. The point here is that organized gambling is clearly against the law and any attempt to regulate it into existence has met with fierce opposition. Then there is gambling that kids partake in like having a flutter on the outcome of a coin toss. The first one sees hundreds of millions of Rupiah change hands and the other is lucky if it sees tens of Rupiah change hands.

A recent case that was heard in Tangerang District court has ended with ten children being convicted of gambling. Their punishment to date is that they have been sent home with their parents. The result is clearly not the right one. The case should never have even seen the light of day. But, it did and it highlights the lunacy of the law enforcement system in Indonesia. Anyone who argues that reform is taking hold is kidding themselves.

The lawyer of the children intends to appeal the decision. If I can help out from afar, then I would be more than willing to do so. The idea that these children were ever in detention was outrageous. The fact that they have been convicted is just as outrageous. The Attorney General should have instructed prosecutors to drop the case. The fact that he did not indicates where the priorities lay. I would also suggest that the masks provided hardly are sufficient to conceal the identities of these children, so the Tangerang prosecutors have failed in this regard as well.

There must be something in the water out Tangerang way. These are the prosecutors from the same Tangerang office that placed a young mother of two, Prita Mulyasari, in jail for writing a letter complaining about the service she received from the Omni International Hospital. There must be absolutely no serious crime in Tangerang that these prosecutors have nothing better to spend their time on than jailing young children and mothers.

This is a case that must capture more people's imagination and not just in Indonesia but further afield. An excellent piece, some might call it an enlightened and educated rage against the machine was written by a resident expat in Indonesia, Patrick Guntensperger, and can be found here.

The stupidity of the whole affair is that there are hardened criminals and organized criminal activities continuing to go about their ways without any concern at all about being arrested or brought to justice. Now, whether this is because they have connections to the right people or pay the necessary "fees" to avoid trouble, I will leave to you and your imaginations. However, the lawyer for the ten children, Kristin Tambunan, has a point when she asks, "since when is playing a crime?" This becomes even more absurd when one considers that these children are currently convicted criminals because they were tossing coins to fill in time between shoe shining gigs.

The conviction of these children is, plain and simple, wrong. The appeal must be accepted on the grounds that the judges erred in allowing the case to proceed, as the prevailing laws and regulations clearly state that the prosecution of children is a last resort. The verdict must be vacated and these children need to be allowed to get on with their lives without the noose of convicted felon hanging around their neck.

What is the Office of the Public Prosecutor thinking?

Children and the Justice System in Indonesia

Despite the title of this post, it is not some academic expose on juvenile justice. It is a commentary on a particular case that is currently before the Tangerang District Court in Indonesia. It involves children and an alleged gambling session.

The relevant law in Indonesia is Law No. 3 of 1997 on Juvenile Justice. The law states that a juvenile that is subject to the provisions of the law is any child between the ages of eight and eighteen. However, where children are found to have committed an offense that is subject to the provisions of this law and they are under the age of eight, then the child may still be subject to some form of action. This action will not include a court appearance. However, it might include removal from the home and placement with child services.

However, once the child has reached an age of eight then they can be brought before a court of law and tried for their alleged offenses. The trial is to be closed and the identities of the children are to be protected. Interestingly, the above photo is from the hearing and it shows the children wearing masks in order to protect their identity. For me, though, a closed hearing must mean just that, it is closed to all bar the prosecution; the defense counsel, the judges and associated court staff, and the child or children's immediate families. This is seemingly not the way it has been done to date in this case.

However, the lack of real protection of the children's identities is hardly surprising. Having lived in Indonesia and watched a good deal of crime reporting on television or reading about crime in the paper, it is clear that a very poor job is done with respect to "really" protecting the identities of children in criminal matters. I am certainly not in favor of naming and shaming of minor children. On a slightly different note, I also believe that children who have been victim of crime have an absolute right to have their identities protected.

In a case that is currently before the Tangerang District Court that involves the prosecution of ten children ranging in ages from eight to eleven. These children were allegedly caught gambling. Their game of choice was guessing the value of a coin at IDR 1000 a game. This is hardly big stakes gambling, and you would think that the police, public prosecutors, and the courts have bigger fish to fry in the crime stakes than these ten children. Then again, maybe not.

The children were caught in the middle of their high-stakes game within the surrounds of the Soekarno-Hatta International Airport in June. Sadly, the reason they were there was because they were trying to make a few extra Rupiah shining shoes of much wealthier travellers on their way out of Jakarta or out of the country. The majority of these kids are regulars in primary school and would hardly classify as hardened criminals in the making.

In any event, the criminal prosecution of these children should have been a case of last resort. A slap on the wrist and a warning to their parents and guardians that this sort of thing is not on and if they get caught again then perhaps it is time for social or children's services to become involved. The idea that these ten children could end up in a juvenile detention facility for gambling less than one dollar is more wrong that the offense that they have allegedly committed.

Defamation in Indonesia -- The Prita Mulyasari Case

This is an interesting case for a number of reasons, but it has become infinitely more interesting now that the Tangerang District Court has handed down its decision on the merits of the case. In essence, the Court has thrown the case out based on the legal reasoning that the law under which Prita was charged has not come into force. This means that the indictment was invalid and the allegations charged on ineffective legal provisions.

There has been much discussion about the legitimacy of the judiciary with respect to the quality of the judges being permitted to sit on the bench. These discussion generally call for immediate reform and a cleaning of the slate. The idea being one where all of the "dead wood" would be swept away and only quality timber would remain. This decision is sure to re-ignite the judicial reform debate, if the debate needs any re-igniting.

A really brief background of the Prita (photo here) case is as follows. Prita went to the Omni International Hospital for treatment. Prita was unhappy with the treatment and wrote to a friend expressing her disappointment and horror at how she was treated. This written account found its way to a mailing list, and the rest is history so to speak, as the account spread like wildfire. Eventually, Omni found out about the claims and sued Prita for defamation.

Defamation in Indonesia is both a civil and criminal offense. The civil case was heard before the criminal case (which has just been thrown out). In the civil case, Omni won a decision against Prita for the defamation. The Court in the civil case ordered Prita to pay damages to Omni to the tune of IDR 312 million. The Office of the Public Prosecutor in Tangerang decided that it was going to pursue the criminal defamation complaint as well and then had Prita placed in the Tangerang prison while awaiting trial.

Indonesia has been in a rather lengthy debate as to whether a democracy such as Indonesia should even have criminal defamation laws on the Statute Books. However, this really is not the issue, as there are democracies elsewhere that have criminal defamation laws on their statute books but also restrictive definitions as to what can be subject to a criminal defamation prosecution.

So, within this framework, the jailing of a mother of two, where one of those children is a breast-feeding infant was sure to cause public outrage. Even better still was that this is an election year, and with a presidential election in early July, this was the perfect time for some political grandstanding. Prita was eventually released from prison after some intervention from at least two of the three presidential candidates; Jusuf Kalla and Megawati Soekarnoputri are never ones to miss an opportunity.

There were even some harsh words from the Attorney General suggesting that the public prosecutors had over-stepped the mark. There was at the time the sense that perhaps the hospital had lobbied hard for the prosecutors to make a move on the criminal defamation and proceed against Prita.

Probably more interesting still was the public response that pre-empted, and perhaps even prompted, the political response and ultimate release of Prita from prison. Cyber space swung into full force and within next to no time there were groups dedicated to Prita's cause and a campaign for her release. The ease and the size of the campaign and are testament to Indonesia's online community and their ability to get organized fast.

Now comes the truly interesting part. I am all for judges who are a little bit activist and judges who are creative and novel in how they approach the law. Yet, there are those times where you simply just have to shake your head and say, "what were they thinking?" This is one of those cases.

For the record, I do not think Prita should have been put in jail pending the criminal defamation trial. The reason I had avoided writing on this subject is that from a strict legal interpretation sense the criminal provisions with respect to defamation are not absolute and there are at least three identifiable get out of defamation free cards; the statements were in the public interest, the statements were uttered in self-defense, and the statements are not defamation but the truth.

It is worth noting that the Constitutional Court has heard arguments on defamation and has held that the criminal defamation provisions are not a breach of the constitutionally guaranteed rights if Indonesian citizens. The Court has also held that any more recent legislation on defamation is to be read in conjunction with any other law or regulation that purports to govern the substantive matter of the allegation. Specifically, this means that the Law on Information and Electronic Transactions (Law No. 11 of 2008), and in particular Article 27, must be read in conjunction with the Indonesian Criminal Code (Kitab Undang-undang Hukum Pidana / KUHP).

Defamation in Indonesia generally requires the insulting of one's honour or reputation. It would seem that Prita's statements to others would in a broad sense fit into this definition. Prita's defense against the allegation would be one or more of the exceptions noted earlier. Most likely here would be the public interest and that the statements are true.

The Tangerang District Court has however decided that Law No. 11 of 2008, which was enacted on 21 April 2008, does not come into force until 21 April 2010. Therefore, by the court's reasoning, the law is not officially in force and people cannot be charged under any provisions that it contains.

This is simply wrong. But, let's examine the rationale. The court relies on Article 54(2), which states the following:

All Government Regulations must be confirmed no later than two years after the enactment of this Law.

The court has therefore held that while there are pending subsidiary legislation to be confirmed the primary law is not in force.

However, this must be contrasted against Article 54(1) of the same Law, which states the following:

This Law comes into force on the date of its enactment.

Clearly, the primary law is in force according to the provisions of the law itself.

The judges have erred in their judgment on the merits of the legal basis of the case. The Office of the Public Prosecutor must appeal this case. The grounds for appeal are that the court has made a mistake of interpretation. Furthermore, the Article on which the Prita case is based, Article 27 of Law No. 11 of 2008, does not require any subsidiary legislation to be confirmed in order to be effective.

The impact of the decision is far-reaching in that all laws that have seen people charged, convicted, and detained based on a primary law where there was pending subsidiary legislation now have cause to go back and revisit the legal foundations of those cases. Lawyers in all pending cases need to look at whether there is a similar provision in the primary laws under which they have clients charged, as if there is pending subsidiary legislation then there are arguments to be made that the primary law is not in force.

There are also some serious questions to be asked where public prosecutors have brought cases to trial based on electronic evidence as defined in Law No. 11 of 2008. The serious questions here include, "if the law is not in force, then can the electronic evidence derived under its definitions be valid?"

Going forward the impact on legislators and drafters is that if they want a law to come into immediate force then the primary law must contain all the necessary provisions or primary laws must be submitted as a package deal with all the subsidiary legislation already prepared.

The decision needs to be overturned on appeal, if for no other reason, just to ensure legal certainty of legislation. The legal rationale and reasoning of the Tangerang District Court is wrong. It is unclear whether they were swayed by public opinion or feelings of "it is the right thing to do", but the decision is misguided. An Indonesian account of the decision can be found at Legal Minded by Ari Juliano Gema.

Once again, for the record, I am not for Prita being jailed. However, I am for the rule of law and proper enforcement of the law, and for all people to be treated equally under the law. The question of whether Prita has defamed Omni is a different question to the one being discussed here with respect to legal interpretation and the making of laws from the safety of the bench.

This is clearly not in the best interests of Prita (particularly if the case gets overturned on appeal), not in the best interests of Indonesia, and not in the best interests of the law.

The appeal is something I will certainly be watching.

Sheila Marcia Joseph and Hearing No. 2

The second hearing in this case at the North Jakarta District Court took place earlier today. I might have to head along to the next one to make sure that I am getting accurate information rather than relying on talking to people and reading the news.

It seems the indictment states 0.586 grams of Crystal Meth (sabu-sabu or shabu in Indonesian) and not 0.0586 grams as previously posted. I will have to check this to be sure in my own mind on what the actual amount is because on of the police officers states a number of 0.27 grams as the amount found on Sheila.

There were four witnesses present today, two police officers and a couple of people identified as informant and friend, respectively.

The witnesses were: Wing Kenedy and Dedy Raharjo (police officers) and Toni (an informant) and Virdia (allegedly a "party / clubbing" friend of Sheila's).

The testimony from the police was the standard run of the mill relaying of how the whole thing went down from start to finish and their respective involvement in that process. They were clear that Sheila was not the target of their little operation. The testimony of Wing Kenedy was not subject to any objection from Sheila to the extent that she did not deny any of the points of evidence as they related to her.

The whole operation was based on complaints that the two rooms that were the focus of the operation were known to residents of the Golden Sky Hotel (I always thought that they were apartments) to be often the scene of drug transactions.

As it turns out Sheila might be the victim of bad timing in terms of being in either room on the day if the operation. This is a case of what ifs, "what if I never used drugs?", "what if I went to the Golden Sky on a different day?"

The testimony from the police informant is a little strange as it seems to implicate the assistant, Aprilyana, as a dealer or at least a one-time seller who was prepared to trade Toni's mobile phone for a packet of drugs. Sheila's claim that she was a little confused and unsure of who Toni was seems to be borne out by the testimony. Nevertheless, Sheila does not deny that Toni was there only that she really did not know why he was there. However, it raises some questions about Aprilyana and her role.

The testimony of Virdia is interesting as it indicates that Virdia was friends with Sheila and Aprilyana and that they were all regular users of sabu-sabu. Virdia also claims that she has known Sheila for a year or so and that she has only been using crystal meth since May. Her testimony goes on to state that Virdia, Sheila, and Aprilyana were regulars at the Stadium Discotheque and that they were all regular users of ecstasy (locally known as ineks).

Sheila rejected the testimony of Virdia by saying that she had never taken ecstasy.

This case sounds like it is going to be interesting, at least from the point of conflicting testimony, so maybe I should head on up to the North Jakarta District Court for the next hearing.

Sheila Marcia Joseph and Drugs

This is old news as it in seven days off the pace. However, having had a squizz at my statistics and visitors over the past week it seems that some people have been passing through in pursuit of information on the young starlet and her legal dramas as a result of her recent drugs bust.

I have written about this case before but mainly because it is a sad and interesting story and I could post a sexy photo of her to entertain you all.

The first hearing of the case occurred last week (20/10/08) in the North Jakarta District Court and lasted a mere 20 minutes. The 20 minutes was enough time for the Public Prosecutor to read out the indictment and the charges that Sheila is to face. Sheila is looking a little worse for wear after her time in custody (photo courtesy of Kapanlagi.com). She was accompanied by her lawyer, Mudarwan Yusuf, and an assistant, Aprilyana. Her family and some friends were also in attendance by all accounts.

The indictment charges that Sheila has breached Articles 60 - 63 of the Narcotics and Psychotropic Drugs Law. These Articles in essence relate to the possession of drugs for personal use and carry a maximum term of imprisonment of five years.

The indictment also states that the amount of shabu in question is 0.0586 grams and that she was also in possession of a bong, two lighters, and a little blue box to store all the drug paraphernalia in. The other evidence of the commission of the offence is urinary. The Public Prosecutor has even provided the plastic bags that the urine was collected in.

The Public Prosecutor did not manage to secure the attendance of the witnesses so the Judge adjourned the matter for a week. Presumably this is so the witnesses can be secured and attend. The witnesses are police officers.

I might make this a regular column here and follow this case through to the end. I am guessing at this stage that Sheila is not likely to get the maximum in this case. She is likely to get time served, particularly if she admits to being an addict and agreeing to seek help, or maybe 18 months on the very outside for a first time offender. I would guesstimate 12 months.

This would make a good lesson on the dramas that drugs can get you into. Is it likely to be a major deterrent to others thinking about doing drugs, probably not. Simply, nobody thinks they will ever get caught.

Garuda Pilot -- Trial

Captain Marwoto Komar the pilot of the ill-fated Garuda flight that crashed in Yogyakarta on 7 March 2007 is to be tried for his alleged negligence in the deaths of 21 people and the injuries of many more.

The trial is to be held in the Sleman District Court (near Yogyakarta) in Central Java. The trial is scheduled to begin on Thursday. There is to be a panel of judges to hear the case.

The final report by Indonesia's air safety investigators stated that Komar was so "fixated" with landing that he ignored 15 alarms and the pleas of his co-pilot. Nevertheless, Komar's arrest was greeted with protests and claims that the data from the black boxes and other flight recording equipment was inadmissible in a court of law pursuant to prevailing laws, regulations, and practices.

This means that the police would have had to obtain evidence that did not rely on the black boxes or the flight recorder information. Obviously the Office of the Public Prosecutor believes that the police have done a sufficient job in this regard to warrant proceeding to trial.