Gayus Tambunan: SBY Adopts A "Hands-On" Approach...

There is a limit to the "ummming" and "ahhhhing" that one's constituents can take before they start to get fidgety and demand a more hands-on approach to end what appears to be a never-ending lurch from one crisis to another. There is probably also a point that a president reaches where they can no longer look at themselves in the mirror without being horrified at their own incompetence. So, in many respects it is a "no-brainer" that Susilo Bambang Yudhoyono (or SBY to the masses) has decided to tell the nation that he has issued 12 presidential instructions and appointed the Vice President as his point man on the Gayus case.

Yet, the more hands on approach runs counter to the president's preference of the past. The president avoided getting involved in the shenanigans that saw two Corruption Eradication Commission commissioners investigated on fabricated evidence because he did not want to be seen to be interfering in the application of the prevailing laws and regulations. Yet, in this case he seems to think that it is time to meddle and sort things out.

Although his meddling is really an attempt to look like he is doing something without really doing anything at all. It is, for those of you familiar with the term, a "Clayton's Presidency"; the presidency you have when you are not having a presidency.

SBY has instructed law enforcement to cooperate. He has instructed law enforcement to engage the KPK in a more pro-active way in investigating the cases that have not already been investigated by the police. Oops, sorry Mr. President, but aren't the police implicated in some of these cases, and wouldn't having the police in charge of some of these investigations be a conflict of interest that is not all that different to letting the fox have the keys to the hen house? The KPK should be handling all these cases and the KPK must be given the mandate to re-open and re-investigate, if they so desire, any and all cases of their choosing. Anything short of this leaves you exposed to charges of favouritism and interfering in the drive to eradicate corruption.

One of the "biggies" that the president put forward was that it was time to adopt a reverse burden of proof. Simply, this means that the burden is no longer on the prosecution to prove the case, but the burden shifts to the accused to prove that they did not commit the crime that they stand accused of. The question that people should have of the president is where do you want to stop the reversal of the burden of proof? Is this just for corruption cases or is the intent to just reverse the presumption of innocence in favour of a presumption of guilt until such time as the accused can prove their innocence?

As a matter of interest, Mr President, how much smoke is needed to reverse this burden of proof? For example, if a citizen says that a bribe was demanded and then paid would this be sufficient to trigger the reversal and the accused receiver of the bribe have to prove they did not make the demand and accept the money or goods? What happens if someone accuses the president of having acquired wealth during a stint in the army from illicit means? Would the president then be required to prove the origin of their wealth? Is it not the case that the wealth reports that elected and appointed officials in government must complete designed for this purpose.

Reversing the burden of proof is a double-edged sword and a very slippery slope. In any event, one must ask whether a reversal of the burden of proof would have made any difference in this case?

But I digress.

The 12 Presidential Instructions in a nutshell are:

1. The National Police, Attorney General, and the Ministry of Law and Human Rights are to expedite the resolution of the Gayus case;
2. Increase the synergy between the Financial Transaction Reports and Analysis Center (PPATK) and the Legal Mafia Eradication Unit. And, the KPK to become more involved in cases not yet "handled" by the police;
3. Performance audits of all those involved in the Gayus case;
4. All the companies mentioned in the case to date are to be investigated;
5. Reverse the burden of proof;
6. Relevant agencies are to search for, locate, and repatriate all state assets including any money obtained corruptly;
7. All officials who have violated the prevailing laws and regulations are to be punished accordingly (within a week);
8. Restructuring of all organisations and agencies that have been found wanting throughout the Gayus case;
9. Review and reform of work systems to ensure that future failures of this kind do not occur again;
10. The president to receive written reports on the progress of the implementation of these instructions;
11. Progress reports are to be made public so that the knows what has been done, what is being done, and what will be done with respect to the Gayus case; and
12. The Vice President is appointed to head-up the supervisory team, and the VP is to be assisted by the Legal Mafia Eradication Unit.

Just a personal note. I am not convinced that this is a more hands on approach. To me it reads as a statement to try and preserve personal public support for himself while maintaining enough distance that he is not fully hands-on and can claim later, when this does not get a positive result, that people did not do as he instructed them to and therefore it is "not my fault".

Ho hum...

Super Gayus...

It is a little hard to know whether to laugh or cry when reading about the exploits of one Gayus Tambunan.

Gayus Tambunan is a mid-ranking tax official who was arrested for corruption relating to the extortion of trillions of Rupiah from a whole raft of Indonesian conglomerates where the Bakrie family figured prominently. The plan was that this young man would roll over and rat out all those that he had worked with in this elaborate scheme.

The outcome was to be the shining light of the President's, SBY, fight against corruption. Instead, it has been a complete farce that has seen Gayus, dubbed as Super Gayus by The Economist, take Indonesian law enforcement on a world-wide ride taking in sites such as Singapore, Thailand, Macau, and even some more local sites in Bali (including a trip to the Commonwealth Bank Cup Tennis Tournament).

The ever-reliable and most knowledgeable Treespotter has an interesting analysis, and an enjoyable read, over at his place. I would encourage people to read the Treespotter's take on this matter and a whole stack of others that he has blogged about, insightful.

The laughing and crying angles on this case relate purely to watching law enforcement and elected officials try and explain these shenanigans away by passing the buck. If there was ever a case of "pass the hot potato" this has to be it. What has become painfully clear to more and more Indonesians is that the battle that they are waging against corruption is far more difficult than they ever imagined that it might be. To say corruption is endemic is, in light of the Tambunan case, an understatement.

Yet, the case is exposing the people who most Indonesians are relying on to fight this battle as complete incompetents that perhaps should be facing charges themselves rather than holding down positions of authority  and influence. At best some of these individuals need to be handing in their resignations en masse.

For example, the Minister for Law and Human Rights, Patrialis Akbar, in an attempt to make himself look good and to deflect any unwarranted attention from his Ministry decides that he must categorically deny that the possibility that Tambunan traveled overseas on a fake passport was possible.

After all it is the immigration department that would have had to have had a hand in issuing a fake passport and that is an area under his jurisdiction. Sadly, as the picture above shows, the man was able to get a second passport in a false name and was seemingly able to travel with ease to the places that the media is now claiming that he did.

I guess what is becoming most surprising to me now is why this story did not break some time ago. Let's face it, the biggest ace in SBY's "war on corruption" managed to spend less than a week in his cell over a four month period. How is that no-one noticed this until now? Perhaps this says something more important about the battle ahead. Perhaps it says something more important about the President and his minions that have been tasked with fighting this battle.

It seems that the President, his minions, and other law enforcement officials can only say so many times that "we don't have to worry Indonesians are too stupid to see through this" before the good citizens of Indonesia rise up en masse and say "hold on a second, we are not stupid, we will not tolerate incompetence any longer, we want change - change that we can not only believe in, but change that gives us real and tangible benefits". Indonesians are not stupid, but this will require Indonesians as a whole to take a long hard look at themselves and say "enough is enough!"

Indonesia really does deserve better than SBY!

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.

"Rape By Deception"...

You have to give it to the Israeli courts, they will be creative in their jurisprudence if it means protecting some absurd sanctity of Jewishness and purity. If you tell lies and mistruths or you misrepresent something, like who you are for example, you might be guilty of deception. But to say you are someone you are not, or to lead someone to believe you are someone you are not, seemingly gets you in a position where you can be guilty of rape by deception.

In essence, if you embellish your personal story to get laid, then you get laid and the other person finds out that you are not who or what you say you are, then you are guilty of raping that other person because they would not have willingly engaged in sexual relations with you if they had known the truth.

This brings us to the case of Saber Kushour. It is a story I came across as I plough through the news online. I found this story at The Guardian here. The article is based solely on the account of Kushour.

The story is a sad tale because Kushour is a married father of two, and irrespective of the outcome of the case he acknowledges that his stupidity has harmed his family.

Kushour is an Arab Israeli who speaks fluent Hebrew without an Arab accent, and obviously passes for a Jew in some circumstances. Perhaps he now wishes that he did not in hindsight. Kushour has been sentenced to eighteen months in jail for the rape by deception of a Jewish woman.

The sex was consensual at the time and lasted a mere 15 minutes. Kushour's case is on appeal and attracting considerable attention in Israel for the underlying racist nature of the sentence and what this says about justice in Israel, and perhaps what is morally acceptable to Israelis in general.

Why has Kushour been sentenced to prison? This is a crude tale, an adulterous tale, where a single Jewish woman propositions a married Arab Israeli man and then has sex with him on a rooftop. To be fair the Jewish woman does not know that Kushour is married. But, Kushour is married and seemingly figured it was a good idea to avail himself of an opportunity to have a casual sexual encounter that his wife would never find out about. Unfortunately for Kushour, the Jewish woman when she found out that Kushour was really an Arab Israeli and not a Jew she lodged a police complaint claiming that she never would have had sex with him if she had known he was an Arab Israeli and not a Jew.

So, what was the legal reasoning of the judge, Zvi Segal, in this case that would allow a decision like this to be reached:

'Judge Segal conceded that it was not "a classical rape by force". He added: "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated. The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls."' (from the Guardian).

The problem with this reasoning is that the woman was clearly not thinking about the sanctity of her body or soul when she engaged in the consensual sexual activity. The reality is she picked a man up off the street and then had sex with him on a rooftop. The judge has seemingly gone above an beyond in constructing his decision based on the need to protect the public interest from smooth talking criminals.

It would seem that Kushour's crime is that he suggested to the Jewish woman that he was a bachelor interested in a long-term relationship. In addition to the failure to be explicit in saying to the Jewish woman. "before we have sex you should know that I am an Arab Israeli, are you still interested in proceeding with our sexual encounter?" However, it must be pointed out that the Jewish woman did not ask about Kushour's lineage either.

The judge has then decided that the Jewish woman would not have 'co-operated' if she had known that Kushour was not a bachelor, and presumably she definitely would not have proceeded had she known he was an Arab Israeli. Yet, I would argue that the simple fact that she picked this man up while he was out buying cigarettes and then had sex with him on a nearby roof suggests that she was not all that interested in a period of courtship, marriage, and then sexual relations.

Kushour might be an adulterer but he is not a rapist.

Note:
If I can find what the appeal court decides in this case I will add a postscript to this post. If the appeal court upholds this decision it will be interesting to see if anyone tries to argue and introduce it in other jurisdictions.

Alleged Indonesian Criminals In Australia...

Dapit Sinaga

Mangirim Napitupulu

Lioe Oij Min

Lisbet Aprilawaty Sinaga

Henry Guntoro Lioe

Elriva Krisnawati Lioe

Adelin Lis

It seems that Australia might be harbouring at least seven Indonesians that are on a list of 120 of the most wanted international criminals. The list is maintained by Crime Stoppers International and is a centerpiece of their global campaign, Operation I.N.F.R.A, to see the people on the list found, arrested, and prosecuted.

Whether the seven Indonesians remain in Australia is still to be determined. However, it does appear that they have at some point transited through this fine land. The seven, Henry Guntoro Lioe; Elriva Krisnawati Lioe; Lioe Oij Min; Adelin Lis; Mangirim Napitupulu; Dapit Sinaga; and Lisbet Aprilawaty Sinaga, are all wanted for offenses ranging from money laundering to fraud.

The fact that these individuals made their way to Australia in the first place says one of two things; they are either good at what they do in that they were able to get into Australia or Australia's border security is a little too lax in some areas.

If you know anything about these individuals then you are asked to contact Crime Stoppers toll free on 1-800-333-000 or at their website crimestoppers.com.au. All tips can be anonymous.

The Department of National Education, Student Data, and Privacy

There has been an interesting phenomenon occur over the past few days that highlights the power that blogging has in getting out a message and seeing changes made. The Treespotter posted a piece on the Department of National Education and their posting on their site of complete sets of student data.

The data itself is important in terms of administering the individual schools and perhaps also in terms of ensuring that the Department has up-to-date data on students so that it can do its job better. Well, at least, potentially more efficiently and effectively. There is no problem in collecting the data, the problem related only to the need to publish this data online.

There are a number of problems with publishing the names and addresses of some 30 million plus students online from primary school through to senior high school. The most likely of these problems would be identity theft and kidnapping. The identity theft would affect only a small number of students and more than likely those in senior high school who are 18 or 19 years old. They might have all manner of accounts and perhaps even credit cards.

Identity theft is pretty easy as the hacking into of Sarah Palin's email account highlights. If a candidate for the office of vice president and potentially the second in-line to the leadership of the free world is not safe, then what chance does some senior high school student in Indonesia have?

The kidnapping angle is also an interesting one and Indonesia, and in particular Jakarta, has had a few kidnappings occur of late. The idea that all of the research can be done online and at one site, in terms of targeting particular children, is frightening.

Kidnapping might only be one of the problems that could arise. Pedophiles might also find the detailed information useful in targeting certain children as well.

It is worth noting that the site and the downloadable files have been altered to remove the dates of birth and the addresses of the children whose names are included in the files. However, what is less clear is whether the Department has contacted Google and other search engines in order for them to have the cached and indexed files removed from their servers. If they have not then the files are still out there in the cyber world and can be recovered and reposted.

If you do not believe this to be so, then look no further than the ongoing fiasco of the Chinese gymnasts who competed in the Beijing Olympics. It was suspected that some of the Chinese gymnasts were under age, but the documentation provided suggested otherwise. Nevertheless, an enterprising individual managed to find cached files on a Chinese server that contained official documents stating that the ages of the gymnasts were not those contained in the passports provided as proof of their age.

The point, quite simply, is that until these files are removed from the search engines of Google and others the data is still out there. This is always going to be the problem of letting the genie out of the bottle. Once the genie is out, it is almost impossible to get it back in.

The privacy issues are also important. The law in Indonesia does not include a specific privacy law. However, there are privacy provisions in a number of laws that might be able to be used as a means of ensuring this kind of breach does not occur again. Some might argue that this disparate collection of provisions is no substitute for a specific law on privacy, and I might tend to agree. Nevertheless, there is enough in these provisions to prove that Indonesia recognizes a right to privacy and there is also enough in these provisions to sustain a case for a breach of privacy.

For example, Indonesia has ratified the International Covenant on Civil and Political Rights as Law No. 12 of 2005. It is clear in Article 17 of the Covenant that there is a right to privacy and that this right is one that cannot be arbitrarily interfered with. Simply, the Department's arbitrary and unilateral decision to post this private and personal data on the Internet without the express permission of the parents of the students involved is a breach.

Privacy also makes an appearance in Law No. 11 of 2008 on Information and Electronic Transactions. In this Law it relates more to investigations, but it must be noted that the principle is that there is a conceptual understanding of privacy and the damage that can be done if private or confidential information is publicly released.

Furthermore, the Supreme Court of Indonesia has also recognized that individuals have a right to privacy and that their personal or confidential information must not be traded in the public domain. In Article 22 of the Decision of the Chief Justice No. 144 of 2007 it is explicitly clear that any court official that is in a position to provide private or personal information must take into consideration any losses that might be sustained by the individual whose information is released.

Privacy has also been a feature of a Joint Decision of the General Election Commission and the Indonesian Broadcasting Commission. The Decision, No. 12 of 2004, states in Article 15 that candidates in broadcast debates cannot attack issues that are private. Once again, this presupposes that some information cannot be brought to the public domain without the express permission of the individual to whom that information relates.

The Child Protection Law, Law No. 23 of 2002, does not expressly deal with privacy. However, it is clear that the rights of the child are paramount and it is reasonable to assume that a sustainable argument can be made that the posting of the Department of National Education files on the Internet is not in the best interests of children.

In human rights terms the right to collect, collate, provide, and access information is set out in Article 14 of the Law No. 39 of 1999 on Human Rights. This provision supports the Department's right to collect the information. However, the provision also requires that the purpose of the collection of the information must be clear and for a valid purpose.

Article 47 and 48 of the Indonesian Criminal Procedure Code provide the power to investigators to open mail and other correspondence in the course of an investigation. However, if the correspondence does not relate to the criminal case that they are investigating then any information that the learn from the correspondence is to be kept secret. Although this provision does not specifically relate to privacy, it does highlight that, at least, conceptually Indonesia recognizes a right to privacy to some degree.

With the passage of the Freedom of Public Information Law (Law No. 14 of 2008) it is clear that some personal and private information is not to be provided to the public and presumably this would include posting it in a public domain such as the Internet.

For example, Article 6 of this Law is explicit that personal information cannot be provided by a public agency, and the Department of National Education would be classified as such, and therefore the information included in the school children files is conceivably out of play with regards to access by the general public. The type of information contained in the Department files would also seem to be protected from public release by the provisions of Article 17.

The Department has removed the most obvious breaches from their files. Yet, the damage might have already been done with the letting of the genie out of the bottle. This is a valuable lesson in thinking laterally and outside of the box. In this day and age of rapidly developing technology and an ever-smaller world, one must think their actions through from myriad of possibilities before uploading information to the Web.

It would seem that to try and close the chapter on this book the Department of National Education needs to make requests to all search engines that they do whatever they can to ensure that all cached and indexed files relating to this data are removed and / or are made inaccessible.

Information is important, but some information must remain private and this is a case in point.

The NSW Police Force

It seems that having a criminal conviction is no bar to getting into the NSW Police Force. A Freedom of Information request has uncovered that 133 current serving officers have criminal convictions. This makes up less than 1% of the total number of officers serving in the Force of some 15,200 officers.

Nevertheless, some of these convictions are for fraud, negligent driving, and assault. The majority are for drink driving offences in both the medium and high ranges. Other offences included unauthorized access to police computer systems.

None of the officers with criminal convictions have served any jail time.

I guess this is what they mean when they say "everyone deserves a second chance". I suppose police officers should be no different from anyone else.

Republik Mimpi

It seems that the parody of Indonesian political life of present and past politicians, particularly Presidents and Vice-Presidents will soon become the stuff of parody itself. The popular television show "Republik Mimpi" or the Republic of Dreams has found itself in the position where one of the comedians has found himself in some serious legal trouble.

Jarwo Kuwat who impersonates the current Vice-President, Jusuf Kalla, is alleged to have committed a rather large fraud of some IDR 200 million. The fraud stems from the presentation of a cheque that subsequently bounced, a complaint by the person who received the cheque (Alex Cokro), and then Kuwat's failure to answer the three separate summons. The final of these was issued by the police in November 2007 which followed up two earlier summons issued in December 2006. This has in essence forced the police's hand and an arrest warrant is imminent.

Now the legal process will take over and run its course.

This is not the first time the show has been the center of a legal stoush. However, the earlier legal issues really went to the heart of the type of freedom of expression supposedly guaranteed under the Constitution. Unfortunately, at least for Jarwo Kuwat, this is a personal legal issue but one that nevertheless will impact on the show.

Political parody of the type seen in the Republic of Dreams is an important means and mechanism for developing political debate in Indonesia. Even though it is in its very essence comedy and its primary objective is to humor those that watch it, a secondary and equally important function is that it serves to educate. In amongst the humor is information on democratic rights, democratic ideals, reflections on current events and developments, to name but a few.

Law in Action

A solicitor in NSW found guilty of a fraud totalling AUD 95,000 has won a stay against the Law Society of NSW. The stay prevents the Law Society from cancelling his practice certificate even though he has been jailed for two years. This means that he can continue to practice law until the appeal is heard and decided.

The story is not so simple as fraud, trial, conviction, and sentence. There are a number of interesting elements such as alleged blackmail and the complainant being forthright in proclaiming that both he and the solicitor involved 'hate each other's guts'. Despite the conviction and the sentence the solicitor has been granted bail as new evidence has come to light. This new evidence, at least in the opinion of a Judge of the Supreme Court, gives rise to a good prospects that the solicitor will succeed in any new trial.

This is law in action. It is not over until the fat lady sings - for want of a better cliche.