Manohara Odelia Pinot -- Part XXIII -- Default Judgment

It has been a while between drinks, so to speak, when it comes to the Mano posts. However, apart from her self-titles soap getting canned, there has not been anything much newsworthy to post on. Nevertheless, patience pays off, and the girl is back in the news this week and in a bit of a lawyer-driven bind.

It is interesting to see that the press refers to Mano as an Indonesian teen soap star. I am not sure that one truncated, and ultimately cancelled, season warrants the description. Yet, as a teenager she still has time to become a star. However, Mano and her mum, Daisy Fajarina, are in a spot of bother. That bother is what is likely to be a 105 million ringgit default judgment against both Mano and her mother for defaming and slandering Mano's former husband, Tengku Fakhry, of the Kelantan royal family.

Mano and Daisy's previous legal representation have handed back the case files and bailed on the case. The Malaysian High Court has decided that Mano and Daisy have until 5 November to get new legal representation on board and complete the case or run the risk of the court handing down a default judgment. It would seem that Tengku Fakhry thinks he is on a winner no matter whether his former wife and mother-in-law get counsel or not, as he was supportive of a delay to allow Mano and Daisy to seek out new legal representatives.

Aside from the cash, the prince is also asking that the court hand down an injunction that prohibits both Mano and her mother from defaming him by constantly stating publicly that the prince sexually and physically abused Mano during their brief marriage. This mistreatment also included an allegation of abduction or kidnapping.

The best defense to an allegation of defamation or slander is truth. It would seem that with this case, the prince is asking both Mano and Daisy to ante up and prove the truth of their allegations or withdraw them and be penalized for making false claims.

It has been suggested that Mano has been paid well for her work on her short-lived soap opera, but I am not sure she was paid well enough to cover a default judgment of 105 million ringgit.

(Photo courtesy of here)

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.

High Court and Federal Judicial Officers Get A Pay Rise...

The Remuneration Tribunal has awarded a 3 per cent pay rise to High Court and Federal Court judicial officers. However, it is expected that more rises might be on the way.

The salaries for judges are pretty good, but with increasing workloads and demands a 3 per cent pay rise might not be enough, particularly if the government is trying to attract high calibre people to the bench. For many judges coming out of private or public practice of the law quiet often means a considerable salary sacrifice, making the move a labour of love as much as anything else.

So, the 3 per cent rise takes the base salary of the Chief Justice of the High Court to a respectable AUD 446,580 annually. The Chief Justices of the Federal and Family Courts see their base salaries rise to AUD 378,170 annually.

This pay rise should also see the salaries of Supreme Court judges rise in each of the states. Supreme Court judges earn a salary pegged at 85 per cent of that earned by a High Court justice.

I do not have a problem with judges getting a pay rise as most of them more than earn it.

New Australian Military Court Declared Invalid...

Who would have thought that a new Military Court would be declared constitutionally invalid because of a teabagging case. Teabagging, for those of you who do not know the term, is an act performed by a man that involves putting his testicles onto the face of another person. However, this is just what happened to the new Australian Military Court. Well, that and a government not prepared to listen to any advice that the court would not survive a constitutional challenge.

The High Court of Australia has handed-down a unanimous decision that the Military Court as it is currently constituted does not comply with the requisite judicial power outlined in the Constitution of the Commonwealth.

The Court made this decision because the court was designed to exercise the judicial power of the Commonwealth and as such the court had to be established in a particular manner in order to be valid. This was even after reading and considering the legislation that established the court. The relevant legislation goes to some length to state that the Military Court is to act more like a tribunal and therefore did not need to comply with the constitution's judicial power clauses.

How this came to be a High Court matter is an interesting tale of events. Brian Lane joined the Navy back in 1998. In 2005 he was photographed teabagging an army sergeant while the sergeant was asleep. Lane was then charged with committing an act of indecency and assaulting a superior officer. He was charged in August 2007 and discharged from the Navy in November 2007.

When the case came to court, Lane objected to the jurisdiction of the court and lodged an appeal to the High Court to determine whether there was valid jurisdiction. The High Court said that the provisions creating the Military Court were invalid because it was created as a court of record and because it was to have the power to issue binding and authoritative decisions of guilt or innocence. Simply, if it was to have the power to do these things then it must be a court that is properly constituted.

The High Court has ordered a writ of prohibition be issued. In essence, this writ stops the proceedings against Lane from going forward in the constitutionally invalid Military Court.

Perhaps this post lends itself to a picture of teabagging?

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.

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.