Indonesia, Parliament & Porn: A Dilemma or A Storm In A Tea Cup?

There is nothing quite like vibrant democracy, and there is nothing quite like the era of technology that we live in right at this very moment. The reality is that technology makes everything we do potentially something that will find itself in the public domain. There is very little secrecy and even less privacy. The moments we thought were our own may in fact be shared with millions or perhaps billions of people in a very short space of time. The technology at our disposal also makes telling fibs and exaggerating justifications very difficult indeed.

Arifinto of the Prosperous Justice Party (PKS) in Indonesia learnt this the hard way over the past weekend. Arifinto is one of the founders of the PKS. The PKS is an Islamic Party that has been instrumental in pushing an Islamic agenda and the Islamization of Indonesia's legal code. The party was the driving force in the drafting, passage and enactment of pornography legislation. This legislation is draconian in many ways and has been used most recently to put one of Indonesia's favourite singers, Nazril "Ariel" Irham behind bars for making a skin flick and allegedly distributing it online.

The story is a simple one. Arifinto was sitting in a plenary session of the House of Representatives on Friday, just before Friday prayers, when for some reason, known only to him, he decided to use his taxpayer provided Galaxy Tablet computer to watch a little bit of porn. To be blunt, if the man needs a little bit of video stimulation to get him through the day, then so be it. However, he was on the taxpayer funded clock and as such the taxpayers that pay his salary and provide the perks like tablet computers deserve better.

Arifinto's problem was not that he watched a skin flick on public time, but rather that he got caught. In Indonesia's form of open and accountable democracy, photographers are allowed into plenary sessions. In this case, Mohamad Irfan of Media Indonesia was busy snapping away from the gallery and caught Arifinto watching the porn in question. Unfortunately, for Arifinto he was not sure what Irfan had snapped and decided to make a statement that he had inadvertently opened a link in an email sent to him. However, Irfan's photographs were in fact a series of photos that show Arifinto opening the porn film from a file that was obviously saved to his computer.

Arifinto has now decided that the best course of action is to fall on his own sword and seek redemption by stating that he will return to the job of reciting the Koran and seeking forgiveness from Allah for straying from the path. Oh, and if he resigns, rather than waiting for the inevitable push, he maintains all the benefits that he has accrued as a member of parliament.

Herein lies the dilemma. Should a member of parliament who was doing what Arifinto was doing, and has been busted in the manner that he has, have any rights at all to collect taxpayer money in the form of a pension? The other dilemma for Indonesia and for the PKS is what punishment should Arifinto receive? This is particularly important considering it was the KS that were arguing for the severest available punishment to be applied to Ariel. Now,Ariel made a home-made sex tape, which in and of itself is not illegal in Indonesia, which was then stolen and uploaded to the internet without his permission. Therefore, a simple question is what punishment should now be applied to a PKS legislator who has obviously been involved in the distribution of pornography using taxpayer funded perks of office?

Arifinto must not be allowed to resign and slink off into the sunset and enjoy a long and fruitful retirement courtesy of the taxpayer or public purse.What is good for the goose is good for the gander, Arifinto must see the inside of a jail cell. After all, consistency in the severity of punishment needs to be maintained in order to maintain the faith of the general public that the law enforcement system is working, right?

The Diplomat, Porn, and The RAB Experience...

Back in February I had this unusual spike in visitors. I was sans an internet link at the time because of some house moving that we were doing so I was only aware of it some time after the fact.

It is only today that I worked out why it happened in the first place.

Thanks to The Diplomat, an internet magazine that deals with Asia-Pacific issues from what I can tell, mentioned me and my blog posts on the "one and only" Tifatul Sembiring (aka "TitS"). You can read the actual article here.

My guess is that Mong Palatino who happens to be a member of the House of Representatives in the Philippines and the Regional Editor of Global Voices for the Southeast Asia and Oceania regions reads my blog and he is responsible for the spike in visitors to my humble abode. Global Voices is a citizen journalism initiative, and one that I am in favour of. Thanks Mr. Palatino, I appreciate it. Maybe one day I will get to the Philippines to thank you in person (or maybe you might let me do some freelance writing for Global Voices ;)

No matter how it happened, it is always nice to see your name in print somewhere, particularly in a positive light. To be truthful, this is the reason I decided to reopen my blog to anybody who wants to read it and the reason I decided to blog today.

Supreme Court, Gender, and Backlogs -- Indonesia

There was an interesting article in The Jakarta Globe that suggests that a recent appointment to the Indonesian Supreme Court can thank her gender for her appointment.

Sri Murwahyuni who previously sat on the Surabaya District Court has successfully negotiated the fit and proper testing procedures conducted by the House of [not so] Representatives to take her place as the 51st member of the Supreme Court bench. Yes, you read right, 51 members of the bench.

The other appointment was Sofyan Sitompul. Unfortunately, it would seem his gender was not of any assistance as he only just scraped through with 29 out of 57 votes of Commission III on legal affairs.

There are now six women on the 51 member Supreme Court bench. Not truly representative in a population sense, but certainly a move in the right direction.

However, I would be somewhat concerned that the perception is being allowed to develop that she was appointed based on her gender rather than her qualifications and skills, and more specifically what she brings to the Supreme Court as one of its newest members. This perception has developed and will continue to develop if legislators and other commentators do not re-orient their sound bites.

Let's face it,when the Head of the Commission suggests that gender played a role and was an advantage this immediately detracts from the appointee. This is plain and simple sad. This is even more so when the following sentence runs along the lines of "Oh, and she was also qualified too!" But, to add insult to injury, Benny K Harman, the Head of the Commission went one step further to reinforce a stereotype about women being more emotional than men and relying on unknown and unquantifiable other skills.

In this case, Harman said that "A female judge can use her intuition more than a man can and this is what the people want." Huh? What the people want, Benny, is consistency and equitable application of the law. The people want fairness. The people want to know that when they enter the legal system in pursuit of justice that they have every opportunity to find it.

Sad, Benny, sad!

But on a slightly different note. Ruhut Sitompul, no relation to the candidate, stated that there was no corruption in the process because he had never met Sofyan before the vote. I have to say, Ruhut, this hardly engenders any confidence in the process. So, if you had met him before then you might have been open to some good old-fashioned horse trading? But, this is about par for the course for Ruhut in pursuit of getting his head on TV. After all, it was not all that long ago he was seeking support for an idea to amend the constitution to allow SBY to seek a third presidential term for no other reason than all prospective candidates were lousy (in his view).

Sad, Ruhut, sad!

On a completely different note. There are now 51 members on the bench of the Supreme Court. There really should be no delay in seeking justice at the Supreme Court. There should not be any backlog of cases. A country of a similar population size, the USA, has a Supreme Court bench of just nine justices. They seem to manage their workload pretty well in comparison.

Ho hum...

Indonesia, Armani, and a Garuda...

This is one of those times where you sit back in your chair, shake your head, and wonder out loud whether Indonesian politicians have anything better to do. I understand national pride, I understand the need to protect cultural heritage, and I understand insult.

However, I do not understand why you would want to make a mountain out of a molehill on this issue. Unless, of course you wanted to distract the people's attention from more pressing and important matters such as providing a clear explanation of the Bank Century Bailout so that even non-economic types can understand the need, as the government saw it, to bail out a bank of Bank Century's size during a global financial crisis.

Perhaps there is a need to distract people's attention from the shenanigans going on in the Antasari Azhar trial for pre-meditated murder of a love rival. Or maybe it is as simple as needing to distract people's attention away from the faltering president whose 100-day agenda is looking increasingly unlikely to transpire as opposed to just expiring in the sense of dying where it lay.

So, what is this mountain out of a molehill?

Some members of the House of Representatives (usually representing no one but themselves) decided that they were going to pursue Armani for producing a T-Shirt which allegedly desecrates the national symbol of Indonesia. The offending shirt, or at least the image off of it is in the photo above (photo courtesy of Multibrand), has caused quite a stir. The claims, including one from the Minister of Law and Human Rights, Patrialis Akbar, are that the Garuda Pancasila is patented by Indonesia. Now, if this were true, then the image on the offending Armani t-shirt would need to be more than just similar, wouldn't it?

In my mind it would have to be unmistakeably the Garuda Pancasila that everyone associates with being the national symbol of Indonesia. My guess is that most people throughout the world might have some trouble recognizing their own national symbols let alone those of other countries. Yet, in any event, this hardly seems to be a breach of patent (considering patents are for inventions and I am pretty sure that Indonesia did not invent the Garuda). It is also unlikely a breach of trademark.

If Armani was an Indonesian company, then the most likely law to pursue the company under would be the recently passed Law No. 24 of 2009 which deals with matters relating to national symbols, among other matters. Unfortunately, Law No. 24 of 2009 is not likely to have much extra-territorial application if the idea is to pursue Armani overseas. It is also unlikely to succeed in pursuing Armani stores that sell the goods in Indonesia either.

Brett over at Spruiked takes a peak at this issue in his usual forthright manner, and it is worth a read.

The real question is does the use of the Garuda in this way really offend the sensibilities of the majority of Indonesians? My guess is, No! The common sense of the vast majority of Indonesians need not be questioned. And, it is an unfortunate thing that this vast majority is not in the House of Representatives, because then Indonesians and those of us with an interest in Indonesian affairs would not have to read such drivel as a few members of the House of Representatives exploring the possibility of suing a fashion label for using an image of a mythical creature.

Maybe Indonesians are, on the whole, proud that an image they associate with is used in such a way. It is worth noting that Armani has supposedly apologized for any offense it may have caused.

There really must be more important issues of governance to attend to, right?

Transmigration in Indonesia -- Amended Regulatory Framework...

This is something that was written for en.hukumonline.com. The original can be found here.

The era of “reformasi” was the spur for many changes in Indonesia, and this includes the drive to amend the 1945 Constitution of the Republic. There have been four amendments to date. These amendments were enacted in the period between 1999 and 2002. Furthermore, the amendments have since required that other legislation (laws and regulations) also be amended to ensure that those pieces of legislation comply with the amended Constitution.

The previous law on Transmigration Law No. 15 of 1997, has been amended in order to comply with the Constitution as it now stands, particularly with respect to matters of regional autonomy.

The Amendment Bill on Law No. 15 of 1997 was passed by the House of Representatives (Dewan Perwakilan Rakyat / DPR) and is currently awaiting the signature of the president before it can be promulgated as law. The amendments focus almost exclusively on the decentralization of certain transmigration related authorities from the Central Government to the relevant Regional Governments. The amendments also endeavor to create a more conducive transmigration sector; conducive to investment.

Articles 7 – 9, 13 – 15, 25, 26, 29, 30, 32, 33, and 35 have been amended, as has the Title of Chapter VII. Additionally, Chapter IX and Article 34 have been repealed. Finally, three Chapters have been inserted and replace Chapter XI, specifically: Chapters XA, XB, and XC.

One of the most notable changes is that the authority to: determine, establish, and develop areas for transmigration has devolved to the relevant regional governments. This is notable for two reasons; this places greater administrative control on the regional governments themselves to be pro-active in providing support for the transmigration program and accountability.

In effect, the amendments would provide the opportunity to enterprising regional governments to either go it alone or enter into private / public partnerships to develop and exploit their regional potential by enhancing opportunities for transmigration. Whether this eventuates remains to be seen. Nevertheless, the potential for such a development is clearly available under the provisions of the amended law.

The new law provides for sanctions to be imposed on anyone who breaches the prevailing provisions. This is irrespective of whether the breach is conducted by a government official, a business entity, a transmigrant, or some other individual or group. Generally, the sanctions provide for:

• Oral / written warnings;
• Cancellation of licenses (for business entities), transmigrant status (for transmigrants), and / or the Minister of Labor and Transmigration (for groups of people); and
• Criminal sanctions. Not all of the amendments are significant in terms of size.

For example, the provisions of Chapter VIII have been amended to merely change one word; “guidance” (pembinaan) to “development” (pengembangan). Nevertheless, there is seemingly a significant difference in terms of what is required between providing guidance and facilitating development. Yet, the amendment is just one word.

The bill comes into immediate force once it is promulgated. Enactment requires the signature of the President. If the President fails to sign the bill into law then the bill will self-enact after 30 days pursuant to the 1945 Constitution.

Swine Flu In Indonesia...

It seems that Indonesia has recorded its first cases of swine flu or the H1N1. Both cases have been detected in Bali and it seems that the infected individuals are tourists. At least one of them resides in Australia. This has given Indonesia cause for concern that Australians are bringing swine flu to Indonesia through Bali.

This might be one for the conspiracy theorists and those on the House of Representatives Commission I on Defense, Intelligence, Foreign Affairs, Communications and Information, who might be inclined to do a little sabre rattling about how foreign interests are trying to undermine Indonesia.

As you can see, the US President is not taking any chances.

Racial and Ethnic Discrimination -- Reviewed and Updated

Overview

The House of Representatives (DPR) passed the Bill on the Elimination of Racial and Ethnic Discrimination on 28 October 2008. The law has been in the process of being passed since 2005 when it first arose as a DPR Initiative. Indonesia already has a racial discrimination law, Law No. 29 of 1999, which is the enactment of Indonesia’s responsibilities and obligations as a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination.

The premise of the law is that everyone is born the same in the eyes of God and that everyone is equal before the law irrespective of their ethnicity or race. Nevertheless, these aspirations now have a little more gravitas as they have been codified into law. The need for the codification is that all forms of racial and ethnic discrimination are contrary to the principles contained in Pancasila, the 1945 Constitution of the Republic of Indonesia, and the Universal Declaration of Human Rights. Therefore, it is the Government’s view that this provides a mandate that demands that Indonesia take all steps necessary to remove racial and ethnic discrimination from the Republic of Indonesia.

Challenges of Racial and Ethnic Discrimination
Indonesia as an archipelagic nation faces many challenges on the race and ethnicity front. These challenges stem from the bringing together of many racial and ethnic minorities under the flag of a unitary republic. Nevertheless, the differences between the multi-racial and multi-ethnic constituent parts of the Republic are often the trigger for violence.

The law simplifies this to one of differences or imbalance in social, economic, and power opportunities which ultimately lead to substantial losses to the communities where they occur. The violence that accompanies these conflicts is usually extreme and involves not only rioting and looting and destruction but rape and murder as well.

Basic Impacts
Aside from the suffering of the local communities, it is also clear that the suffering extends way beyond the local communities and negatively impacts on the short, medium, and long term development of the nation as a whole. These impacts arise because of many factors, for example, a reluctance of investors to invest in areas that are prone to racial and ethnic conflicts.

What’s Covered
The law stipulates that it regulates issues such as the following:
· The basis for the elimination of racial and ethnic discrimination;
· Actions that satisfy the elements of discrimination;
· Provide protections for those citizens that have suffered racial and ethnic discrimination;
· Protect citizens from racial and ethnic discrimination that arises from central and regional government actions and actions of the broader community;
· Supervision to ensure the elimination of racial and ethnic discrimination by the National Commission of Human Rights;
· The rights of citizens to receive equal treatment with respect to their civil, political, economic, social, and cultural rights;
· Obligations and the role of the community in ensuring the elimination of racial and ethnic discrimination;
· Claims for compensation for losses sustained as a result of racial and ethnic discrimination; and
· Criminalizing discriminative behaviour.

Definitions
The definition of what constitutes discrimination is broad and can be civil, political, economic, social, and cultural. Race and ethnicity are also defined. Race is defined simply as physical characteristics that distinguish one group of people from another and lines of ancestry. Ethnicity is defined as a group that can be distinguished based on beliefs, values, norms, cultural traditions, language, history, geography, and kinship.

The point of eliminating discrimination is to promote and ensure harmony, peace, and security, among others. Therefore, discrimination is defined as any action that seeks to distinguish or differentiate individuals or makes exceptions for individuals thereby holding the potential to upset the harmony, peace, and security apple cart.

The law and the Elucidations are either silent or less than clear on what impact this might have on any affirmative action programs that may arise in the future.

Objectives
The objectives of the law are to ensure the elimination of racial and ethnic discrimination. However, simultaneously the law is also seeking to establish equality, freedom, justice, and universal human norms.

The idea of establishing universal human norms is an interesting objective for many reasons. Most notably among these is that many have tried to distinguish between Asian and Western values and that some norms are not universal, particularly in the context that “Asian cultures” favour the group over the individual right. The former Prime Minister of Malaysia, for example, was a staunch advocate of the Asian values systems. One could be forgiven for thinking that perhaps the law is Indonesia’s attempt to repudiate this point of view by codifying that there are universal human values with respect to race and ethnicity that must be protected irrespective of where one resides in the world, as this does not seem to be the case.

The reality is that the above claims to universal values worthy of protection are moderated in Article 2(2) with the requirement that the values of equality, freedom, justice and universal human norms be determined within the contextual frame of prevailing religious, social, cultural, and legal norms of the Republic of Indonesia.

Discriminative Actions
The law broadly lists what a discriminative action entails as anything that:
· Differentiates;
· Provides exceptions;
· Restricts; or
· Chooses

The above would require that each of these actions was undertaken within the parameters of race or ethnicity. Furthermore, this would also require that the consequences of these actions include the revocation, or reduction in acknowledgment, or the inability to obtain, or implement a human right in any civil, political, economic, cultural, or social sense.

Racial and Ethnic Vilification
The law also regulates hate speech and vilification in Article 4(b). The provision states that the promotion of hate or feelings of hatred through the use of the following, among others, is strictly prohibited:
· Writings or graphic depictions (pictures), and
· Speeches.

Supervision
The supervision of the provisions of the law is to be done by the National Human Rights Commission (Komnas HAM). Supervision will be undertaken through means such as monitoring and evaluation of government policy, investigation and examination of available facts of alleged discrimination, provision of recommendations to government, monitoring and evaluation of programs designed to eliminate racial and ethnic discrimination, and the provision of recommendations to the House of Representatives (DPR).

The Role of the Community
The provisions as they relate to the role of the community also address matters related to citizen’s rights. Simply, every citizen has a right to not be discriminated against based on their race or ethnicity. Every right gives rise to an obligation. Therefore, every citizen is also under an obligation not to make racial and ethnic distinctions and as such play a positive role in preventing racial and ethnic discrimination, and ultimately play a significant role in the process of eliminating racial and ethnic discrimination altogether.

Compensation
The law provides for compensation claims in the event that a citizen has been discriminated against. The claim can be either as an individual or as a class action where there are multiple claimants. Claims are to be lodged at the District Court.

Criminal Provisions
The criminal sanctions in the law allow for terms of imprisonment of between 1 and 5 years and fines of between IDR 100 million and IDR 500 million. The penalties for corporations attract a premium of 1/3.

Closing Provisions
Once the Law enters into force all current racial and ethnic discrimination laws remain in place unless they contradict the provisions of this law. If they do, then the provisions of the law will prevail.

Operation
The Law came into immediate force once it is enacted.

Conclusion

It is clear that the government through the enactment of this bill into law is intent on removing the scourge of racial and ethnic conflict and violence from the Indonesian scene. The law will clearly be complementary to other existing discrimination laws and consolidates and strengthens the overall anti-discrimination regulatory framework.

Nevertheless, there are parts of the law that need further work to clarify matters such as affirmative action programs to ensure balance where natural balance does not occur.

The reality is that enforcement will be the key. If there is lax enforcement of the provisions, simply the government refuses to take action where it can to eliminate racial and ethnic discrimination then the underlying issues that trigger racial and ethnic conflict will remain, and remain unchecked.

The Pornography Bill Passes the DPR

The Pornography Bill finally passed the House of Representatives (DPR - photo) today. This brings to a close the debate on whether to enact the law or not. However, the passage was not without some fireworks with the PDIP and PDS factions walking out along with a couple of Golkar legislators.

The walkout might seem like it was a protest at the content of the bill. However, the walkout really stems from a belief that the procedural requirements for the passage of legislation were not met. Specifically, the claim is that the bill was never "socialized" to the community. This socialization is mandated by law. The walkouts also had some issues with the substantive matter of the bill too.

In terms of the substance the walkouts have issues with the definition of pornography and particularly the broad nature of it. Those that walked out cited for example that body movements could constitute pornography if they offended someone. This means that singer/dancers like Inul and Dewi Persik are likely to fall foul of the law.

This is particularly bothersome for the walk outs when it is combined with Articles 20 - 22. These articles are problematic because of the purported scope they give to the community to play a role in preventing the spread of pornography.

Anyways, the bill has passed and is now awaiting the signature of the President. We will soon find out whether this has all been a storm in a teacup or whether those with fears will see those fears realized.

The Retirement Age for Justices Set to Rise

The Working Committee of Commission III established to discuss and debate the Bill on the Supreme Court has agreed that the retirement age of justices of the Supreme Court should be raised to 70 years of age. However, it seems that the bill is not going to negotiate the halls of power in time for the current Chief Justice, Bagir Manan, to enjoy the benefits of the amendments.

The mandatory retirement ages for judges and justices (judges preside in lower courts and justices generally preside at the Supreme Court) has been steadily rising but is dependent on judges and justices satisfying required medical and health standards. Within this context there has been some debate as to whether judges should be appointed for life in the same way that justices are appointed to the Supreme Court of the United States of America. The idea of life appointments was to free judges and justices from political interference as they would no longer be worried about future appointments when their respective terms expired.

The setting of a mandatory retirement age would be the middle ground between renewable term appointments and appointments for life. In Indonesia, for example, appointments to the Constitutional Court are for a term of five years. At the conclusion of this term a justice can reapply for reappointment for an additional five year term.

The most recent increase in the mandatory retirement age has allowed Manan to serve as Chief Justice through until his 67th birthday which falls on 6 October 2008. Manan has not been seen to be active in the debate and discussion on the latest push to raise the mandatory retirement age and dismissed persistent questions on the matter from journalists with, “that’s the business of government”. When pushed he simply said that the Supreme Court has no legislative function as a judicial body and that the bill is part of “the authority of the President and House of Representatives (DPR)”.

However, Manan did add that in a philosophical way the push to raise mandatory retirement age makes sense as the longer a judge or justice serves in that capacity the more capable they would become in the performance of their jobs and duties. In response to persistent whispers that Manan might benefit from the amendments to the retirement age he invited journalists to his office and happily pointed out all of the empty bookshelves adding that his personal library had been moved to Bandung.

The bill is expected to be finished after Eid or perhaps in the next parliamentary sitting according to M. Nasir Jamil who has been involved in the discussion and debate of the bill and represents the Prosperous Justice Party. Jamil went further to say that none of the discussion related to any particular individuals and that the bill, once passed, will not operate retrospectively. According to Jamil the only way for Manan to extend his term is for Manan to do it for himself. However, Manan has ruled this out unequivocally by informing all of the journalists present in his office that he has already submitted his resignation to the President and all that remains to make his retirement official is the completion of the necessary administrative procedures.

There are critics of the proposal to raise the mandatory retirement age of justices to 70 years of age. One of these criticisms is that there will be no ‘regeneration’ in the Supreme Court’s judicial ranks. This is unlikely to gain much of a foothold as there is clearly a belief and an understanding that the justices that are to sit on the highest court in the land are to be the best of the best and as such when a vacancy becomes available then the next and most highly qualified candidate will be vetted and subsequently appointed to fill the vacancy.
The current retirement age for Supreme Court justices is 67 years of age. Current justices on the Supreme Court that are going to reach the mandatory age of retirement over the next several months include the following:

1. Prof. Dr. H. Bagir Manan SH, MCL / 6 Oct. 1941 / Chief Justice
2. Marianna Sutiadi SH / 12 Oct. 1941 / Deputy Chief Justice (Judicial Matters)
3. Dr. H. Parman Suparman SH, MH / 13 Oct. 1941 / Junior Chief Justice (Criminal Matters)
4. Prof. Dr. H. Kaimuddin Salle SH / 23 Oct. 1941 / Justice
5. Iskandar Kamil SH / 31 Oct. 1941 / Junior Chief Justice (Special Crimes)
6. Soedarno SH / 9 Nov. 1941 / Justice
7. German Hoediarto SH / 24 Nov. 1941 / Junior Chief Justice (Military Matters)
8. Andar Purba / 19 Dec. 1941 / Justice
(Source: Supreme Court Law and Public Relations Bureau)

Nevertheless, there are those that believe that regeneration is the key to success in terms of reform of the judiciary. A former Supreme Court Justice, Benyamin Mangkoedilaga, is one of those. However, he is also in favor of raising the current mandatory retirement age to 70. This agreement is based on the condition that any amendment to the mandatory retirement age does not become effective until 2009.

Generally, there is agreement on the need for the increase in the mandatory retirement age, and as Jamil has stated, the bill is set to be finalized and passed in the near future.

Income Tax Bill -- Passed

This is an updated and expanded version of an earlier post.

Overview

The amendment of the Income Tax Law has been in the pipeline for some time and as is the Indonesian way of legislation, important bills tend to have myriad of issues identified within the proposed provisions. The list of problems identified with the amendments runs to some 770 issues in this case. This list of problems ensures that debate is long and passage time even longer. It also meant that Commission XI of the House of Representatives (DPR) and the Work Committee set up to resolve these issues had plenty of work to do.

Passage
This work was expected to be resolved by the end of 2008 and the amended legislation will be passed by the DPR. However, the DPR has seemed to have made light work of the problems and the Bill was passed by the DPR on 2 September 2008. The general consensus was proved right in that the amendments were technical in nature and did not trigger a significant ideological or policy debate.

Individual Tax Rates
The amendments ensure that there is a reduction in the number of taxation levels from the current five to just four. The maximum rate of taxation will fall from 35% to 30%. Salaries up to IDR 50 million will be taxed at 5%, salaries between IDR 50 and IDR 250 million will be taxed at 15%, salaries from IDR 250 to IDR 500 million will be taxed at 25%, and salaries above IDR 500 million will be taxed at 30%.

Fiscal Tax
The amendments also see the removal of the Fiscal Tax that is paid by residents leaving the country. This will be phased in commencing in 2009 and be in full operation from 2011. The idea of phasing out the fiscal tax is based on the assumption that people will obtain a tax file number in order to be able to take advantage of the no fiscal clause. Therefore, those who already have a tax file number appear to be the most likely to see an immediate benefit from this initiative.

Tax Incentives
Other amendments include incentives for those making contributions to religious activities; incentives for listed companies; incentives for micro, small, and medium enterprises; the taxing of revenue not currently classed as taxable objects (such as the Bank Indonesia surplus), and incentives designed to make Indonesia an attractive destination for both domestic and foreign capital investments.

The amendments are expected to ensure that Indonesia has in place a modern, effective, and efficient tax code that will contribute significantly to national development.

Earlier Versions of the Bill
The only difference of note between the earlier version of the Bill and the one that was passed by the DPR is that the intended insertion of Article 2A did not survive the discussion and debate process and consequently was not inserted into the final version of the Bill.

Amendments
However, for the purposes of review, the new law clarifies or simplifies the following income tax matters:

1. subjects and objects of tax;
2. tax object exceptions;
3. claimable fees;
4. spouses that choose to have a tax payer number of their own;
5. net income calculation norms;
6. non-taxable income thresholds;
7. tariffs;
8. tax avoidance prevention;
9. deductions;
10. foreign tax credits;
11. taxation provisions in the mining and Syariah sectors; and
12. tax facilities for micro, small, and medium scale enterprises.

Corporate Tax Rates
Aside from the benefits that individual tax payers get to enjoy from the amendments, it is worth noting that the government has not ignored corporate tax payers. The current corporate tax rates of 10%, 15%, and 30% will disappear in 2009 in favour of a single corporate tax rate of 28%. In 2010, this corporate tax rate will fall to a flat 25%.

For those companies wanting to go public the new tax provisions provide for a 5% discount on the usual applicable tariff where at least 40% of the shares being offered are offered to the public and subsequently purchased by public buyers.

The government realizes that micro, small, and medium scale enterprises play a significant role in employment and development in the regional areas of Indonesia. Therefore, the recently passed bill recognizes this contribution by providing a discount of up to 50% on the applicable tax rate up to IDR 4.8 billion for gross distribution.

Non-Taxable Objects
As was noted earlier the Government has moved towards phasing out the fiscal tax currently payable by all Indonesians and residents of Indonesia. However, other objects that are no longer going to be subject to tax include student scholarships, financial assistance, educational funds, and research and development. It must be noted that the exemption on research and development taxation is dependent on the excess funding being ploughed back into the research and development program within four years.

Conclusion

It is clear that the Government intends to improve the legal certainty of tax collection in Indonesia. However, this requires that the government tighten enforcement and tighter enforcement requires provisions that are not only clear but easy to comply with.

Indonesian tax payers will be bearing a lighter tax burden in the future and the Department of Finance is of the belief that the lighter the burden the more likely income earners without a tax number are going to register and pay tax. This will increase tax revenue and decrease the numbers of Indonesians not paying their share.

The key will be enforcement. The provisions appear reasonably solid. The only thing standing in the way of the Directorate General of Tax collecting all payable tax is no longer the legislation but the methods used to enforce the provisions.

Pornography Bill -- The Debate Rages On

Overview

In what many would consider a surprising turn of events over the last seven to ten days, the long and tortuous journey of the Bill on Pornography looks set to come to an end. Most pundits have the bill being passed by the full plenary session of the House of Representatives on 23 September 2008 or very soon thereafter. The passage of this bill has seen its fair share of controversy and the very passage of the bill is unlikely to bring to a close these controversies.

The primary concern is that the definitions scattered throughout the bill remain vague and open to interpretation and thereby decreasing the legal certainty in the field. There seems little debate that there needs to be express or explicit provisions inked into law. However, there is considerable debate as to whether there needs to be a specific pornography law considering many of the provisions are already regulated elsewhere in Indonesian law such as the Law on the Protection of Children and the Indonesian Criminal Code.

The bill started this journey as the Bill on Anti-Pornography and Anti-Pornoaction (Indecency). The indecency provisions were in general dropped from the law as these were seen as being more problematic as they tended to deal with private behaviors and were much more subjective in nature. However, some of the indecency provision have been maintained and have been reclassified as being pornographic. The bill in its current form is just the Pornography Bill.

Pancasila and the Bill
Interestingly, the bill starts off with considering the ideals and values contained in Pancasila. Pancasila is the State ideology and contains five basic principles which are supposed to guide the State and her people. Pancasila is very much about tolerance and promotes the idea of unity in diversity (or a more literal meaning of “many but one”) however there are serious questions as to whether this bill promotes diversity and unity in that diversity or is merely a means of tightening governmental controls of public and private behavior to a very narrow set of moral and ethical norms.

The Intent
The intent of the bill and the construction of the provisions are the two sides of the one coin. The intent is clear; pornography is dangerous and exploitative and therefore must be prevented and where possible eradicated. Nevertheless, even where the intent is reasonable the construction can be poor. For example, where a particular definition is so broad that it can conceivably be interpreted in several ways without breaching the general essence of the definition. One of the primary criticisms of this bill is that the definitions are so broad that just about any image can conceivably fit the definition.

What is Pornography?
Pornography is defined in Article 1 as, “any material of a sexual nature that is made by humans in the form of a pictures, sketches, illustrations, photographs, writings, voices, moving pictures, animation, cartoons, poetry/rhymes/prose/verse, conversation, body movements, or in any other communicative message form via a any form of media communication and / or displayed in public, which heightens sexual arousal and / or breaches moral norms within the community.”

Pornography Services
Generally, pornography services are services provided to facilitate pornography such as television, cable television, radio, telephone, internet, electronic communication devices, newspapers, magazines and other printed medium.

This provision is problematic and subjective on a number of levels. Article 4 expressly prohibits the offering or advertising of pornographic services either directly or indirectly. For example, is a newspaper that accepts an advertisement for a massage service indirectly advertising a pornographic service?

Even more interesting is whether a theatre that runs a play or performance that involves nudity protected by the art and cultural provisions discussed later or are that at the mercy of the authorities for permitting a prohibited pornographic performance?

Another issue not properly resolved in the bill is how are artists such as Inul and Dewi Persik to be considered under this law. Perhaps more to the point should they be considered at all under these provisions. It is still to be resolved who is to be the arbiter of the community norms with respect to whether artistic expression is protected or not.

Discrimination
The bill explicitly states that the regulations governing pornography are to be non-discriminative yet appear to regulate certain behaviors not only as being of questionable morality but labels them as being deviant. Some of these behaviours that are deemed deviant include homosexuality, lesbianism, and oral sex.

Pornography Collections
There is a strict prohibition against the listening to, the watching of, the ownership of, and the storage of pornography except where the prevailing laws and regulations grant the requisite authority to possess pornographic material. This means that anyone with any of the elements of the sexual material noted earlier will need to rid themselves of this material as soon as possible. Failure to do so will put the individual at risk of prosecution. This particular set of provisions will need to be read in conjunction with other prevailing laws and regulations as it is unclear for example how someone receiving an email with offending content is to be dealt with if they open the file and the image is stored in the cache memory.

Criminalizing Models
The penalties for voluntarily or agreeing to be a model for material that is deemed pornographic attracts significant jail time and fines. The maximum amount of jail time permissible is ten years or a criminal fine of IDR 5 billion. When one considers that the wearing of a bikini could run afoul of the provisions if the context is deemed to be counter to the intent of the provision. However, this assumes that the photo of the bikini was a marketing campaign to sell more bikinis.

Art, Culture, Custom, and Ritual
The bill purports to make exceptions for pornography that is deemed to be artistic, culturally necessary, part of an acknowledged custom or ritual. It was only recently that when the bill finally looked like getting over the line that small protests broke out. One such protest included Balinese women wearing a traditional see through kebaya that clearly showed the outline of the women's breasts. This might arouse the sexual needs of some however the kebaya is clearly a traditional piece of clothing that is common to many of Indonesia's diverse ethnic cultures.

However, the elucidations to the provision suggest that the interpretation is restrictive and is dependent on not arousing the sexual desires of those who view the material. The example given in the elucidations is one of naked statues.

It is unclear as to what else might be considered under this definition. Are the bare-chested women participating in a ritual or customary ceremony protected from prosecution simply by claiming a tradition, custom, or ritual? The lack of legal certainty in this regard has caused a considerable amount of anxiety to be voiced by those in Bali and Papua.

Bali is particularly worried as there is a concern that the bill, once enacted, will have a devastating impact on tourism. However, the intent of the bill does not seem to be directed at women wearing bikinis or men wearing speedos at the beach.

Child Pornography
The sum total of the bill’s regulation of child pornography and the protection of children is contained in two short articles, Articles 16 and 17.

Article 16 simply requires people to protect children from pornography. Article 17 requires that children exposed to pornography are rehabilitated.

The Community’s Role
Aside from the definition of pornography, the role of the community is the most often debated provision. Yet, the bill seems to provide a broad role for the community in prevention while simultaneously limiting that role.

Of most contention is Article 21 which simply states that, “the community can play a role in the prevention of the production, dissemination, and utilization of pornography.” This is clearly a very broad mandate for the community to play an active role in the prevention of pornography in the general community.

However, Article 22(1) stipulates that the role of the community as envisaged in Article 21 is to:
(a) Report breaches of this law;
(b) Initiate class action lawsuits in the courts;
(c) Undertake socialization activities to explain the prevailing laws and regulations in this area; and
(d) To provide guidance to the community with respect to the dangers and impacts of pornography.

Article 22(2) is explicit in stating that any actions taken under the provisions of 22(1)(a) and (b) must be done so in compliance with prevailing laws and regulations and the perpetrators of any actions are to be fully responsible for those actions.

The provisions can reasonably be interpreted to be restrictive as to what actions are permissible by the community. Nevertheless, the provisions are simultaneously and perhaps purposefully vague in this regard.

Sanctions
There are both criminal sanctions and administrative sanctions contained in the bill. The bill also allows a judge to call founders and administrators to appear in court where the corporations they represent are alleged to be involved in a breach of the provisions of this bill.

The criminal sanctions range from 6 months to 15 years imprisonment and fines ranging from IDR 250 million to IDR 7.5 billion. Where the offense includes the exploitation of a child the liabilities are increased by one-third.

The administrative sanctions include the suspension of business activities, the cancelation of business permits, the confiscation of any proceeds of crime, and the revocation of incorporation.

Closing Provisions
The bill gives anyone with pornography one month to rid themselves of any offending material.

The bill will come into immediate force upon its enactment.

Conclusion

It is clear that the House of Representatives is keen to see this bill passed despite considerable opposition to it. It is unclear, and remains so, as to why there is a need to regulate pornography in this way. However, it seems that politicians in the lead up to the general and presidential elections believe that this bill establishes their credentials as being tough on crime and taking the high moral ground. Yet, there is no-one arguing that pornography is a good or positive activity, the arguments relate to necessity.

Questions remain as to how serious the government is with respect to enforcing the provisions once the bill passes the House and is ultimately enacted. Simply, without the full commitment of law enforcement the bill becomes just another law on the statute books.

Pornography and Indonesia

If recent reports are to be believed, then the controversial Pornography Bill (previously known as the 'anti-pornography and indecency bill) seems to be set to pass the House of Representatives soon. Some lawmakers are hailing this as some kind of prophetic Ramadan gift.

The bill is clearly a threat to the stability of the nation. The provisions appear to criminalize a good deal of Indonesian culture and will undoubtedly have a significant impact on tourism. For these reasons alone the current format of the bill needs to be re-worked in order to make the bill enforceable and not controversial. The provision provide for a little more than just prohibiting the publication of magazines like Playboy.

The bill poses significant threats to privacy as well.

There is opposition to the bill. Unfortunately, this opposition does not appear to be well-marshaled and it would seem the bill's supporters are likely to be bulldozing this through the Special Committee and to a vote on the floor.

Interestingly, Golkar through one of its lawmakers has suggested that the best course of action that may induce a rethink is if there was spontaneous rallies that provided vocal opposition to the bill.

The biggest issue is that the bill regulates morality. There will always be legal questions as to how far a government can go in regulating the morality of its citizens, particularly in the private sphere. The morality issue then gives rise to questions such as whose morals and how are these morals to be defined? To name but a few. There is little doubt that people support the idea of restricting or prohibiting access to pornography and indecency. What is in doubt is whether the current definition of either of the key terms is suitable for the purpose.

Another important question is whether there is a need for a specific pornography and indecency law. Most legal scholars would agree that the key offenses are already regulated in existing legislation, including the Criminal Code, Child Protection Law, and the Cyber Law (ITE). Some might argue that this is a lex spesialis law that deals with a very particular set of circumstances and offenses. However, this argument is moot in the sense that there are no arguments can be made that the provisions are not anything but mere duplication of provisions contained elsewhere.

With a definition of pornography like this:

"Pornography is any work that includes sexual materials in the form of drawings, sketches, illustrations, photographs, text, sound, moving pictures, animation, cartoons, poetry, conversations or any other form of communicative message"

it is little wonder that people have concerns.

Even greater concerns arise when the issue of enforcement is discussed. The bill would seem to allow an interpretation that suggest vigilante justice is permissible. The relevant provisions suggest that the community may take preventive measures. This is clearly different from the community having a mere reporting role where they suspect a breach may have occurred. If this indeed is an acceptable interpretation then you are going to have unqualified individuals and groups making legal determinations with regards to what constitutes pornography and indecency.

The stoning of Playboy's offices and the forcible closures of bars, pubs, and entertainment venues is just the beginning. Other places of indecency and pornography are likely to include museums and theaters.

A cold change is definitely in the air!

Income Tax – An Amendment Bill

The amendment of the Income Tax Law has been in the pipeline for some time. However, the list of problems identified with the amendments runs to some 770 issues. This means that Commission XI of the House of Representatives (DPR) and the Work Committee set up to resolve these issues has plenty of work to do.

It is nevertheless expected that this work will be resolved by the end of 2008 and the amended legislation will be passed by the DPR. The general consensus is that the amendments are technical in nature and are unlikely to trigger a significant ideological or policy debate.

The amendments will see a reduction in the number of taxation levels from the current five to just four. The maximum rate of taxation will fall from 35% to 30%. Salaries up to IDR 50 million will be taxed at 5%, salaries between IDR 50 and IDR 250 million will be taxed at 15%, salaries from IDR 250 to IDR 500 million will be taxed at 25%, and salaries above IDR 500 million will be taxed at 30%.

The amendments would see the removal of the Fiscal Tax that is paid by residents leaving the country. This will be phased in commencing in 2009 and be in full operation from 2011. The idea of phasing out the fiscal tax is based on the assumption that people will obtain a tax file number. Therefore, those who already have a tax file number appear to be the most likely to see an immediate benefit from this initiative.

Other amendments include incentives for those making contributions to religious activities; incentives for listed companies; incentives for micro, small, and medium enterprises; the taxing of revenue not currently classed as taxable objects (such as the Bank Indonesia surplus), and incentives designed to make Indonesia an attractive destination for both domestic and foreign capital investments.

The amendments are expected to ensure that Indonesia has in place a modern, effective, and efficient tax code that will contribute significantly to national development.

DPR warns the KPK

It appears the Indonesian House of Representatives (DPR) has taken offence that the Indonesian Corruption Eradication Commission (KPK) has been arresting serving members of the DPR. The total is five at last count and seems destined to increase. Perhaps the should rename the DPR to the House of Rupiah.

The DPR is most concerned that the KPK is criminalizing legislators. Yes, if you are thinking that this sounds a little ridiculous, you're right! The legislators are criminalizing themselves by accepting bribes, by partaking in graft, and through generally stupid behaviour.

Commission III deals with legal affairs and in a closed-door meeting yesterday they had the KPK leadership in their sites for a "please explain". The Chair of Commission III, a former lawyer by the name of Trimedya Panjaitan, has demanded that the KPK if it is conducting supervision of legislators that it divulge how they are doing it and the methods that they use.

Panjaitan's rationale is that people have rights that must be protected. Indeed they do! However, provided the KPK follow the procedures set out in the law that governs them and their activities then everything is above board. This would include the surveillance of members of parliament. As I recall there is nothing in the law that requires the KPK to notify the DPR of any intent it has of conducting surveillance. If it did then this may well defeat the purpose of gathering intelligence and conducting the surveillance.

Perhaps the DPR's beef with the KPK is that the arrests have been highly visible affairs and with solid media coverage of the events. This is some what embarrassing and when you consider the arrests to date are the tip of the iceberg then it appears there is considerably greater levels of embarrassment to follow.

Panjaitan also seems some what aggrieved that the DPR is coughing up suspects but the executive is not. He has wondered out loud and on the record why it is only DPR members feeling the full force of the KPK while the executive gets off scott free. To me this says, Panjaitan knows about corruption in the executive or that the executive is smarter than the DPR or that there has been no corruption identified yet in the executive. Either way, the KPK will go after the executive if there is something to go after. But let's face it, the DPR is keeping the KPK pretty busy at the moment.

It seems unlikely that Commission III will have any luck in pressuring the KPK into back-tracking on investigations. Simply, the KPK will continue to garner increased public support whilever it is seen to be seriously tackling the corruption problems afflicting Indonesia. Therefore, there is no need to pander to the interests of some scared members of parliament.

As the saying goes if you have done nothing wrong then you have nothing to fear.

Corruption In The Office of the Attorney General -- Indonesia

The politicians of this vast land have decided to weigh in on the corruption debate that afflicts the Office of the Attorney General. This is not necessarily a bad thing but it does very much seem to be a case of the pot calling the kettle black!

There is no doubt that the Office of the Attorney General has serious corruption problems. The most recent case is testament to that fact. It is also testament to the fallacy of the claims made by the current Attorney General, Hendarman Supandji, that he was going to clean up the image of the Office and make it corruption free. This is a fallacy because some of the Attorney General's own appointments are implicated in serious corruption.

Nevertheless, despite the title of this post and the above paragraph. Perhaps rather than singling out the Attorney General on corruption there is a need for the House of Representatives or the DPR to be a little more introspective and clean up their own backyard first. With a general election coming up in 2009 there are already rumblings of money politics being heard around the traps. It is expected that the "fees" required to get on some tickets is going to increase this cycle. This means that there is still a belief in some circles that a ticket to Senayan is a ticket to the big pay day and a life lived in the lap of luxury.

As I said, the Office of the Attorney General needs to clean house, no doubt about it. But if we are going to talk about cleaning house then it needs to be across the board. The DPR needs to get their collective heads out of the sand and the individual parties must take a "real" stand against corruption rather than just pay continual lip service to an ideal for which they do not really aspire.

If you play with fire for long enough eventually you will get burned!