Smoking Gets Even Tougher in New York City...

I guess I am having an unhealthy night...

New York City under the guidance of Mayor Michael Bloomberg banned smoking in bars, restaurants, and other public indoor areas way back in 2002 (has he been in the big seat that long already?). This caused a little bit of a public outcry about the trampling of smoker's rights. However, that has seemingly passed. Nevertheless, it has taken the Bloomberg administration a very long time to become emboldened enough to take the next step and ban smoking in open public spaces.

Bloomberg has signed a law that bans smoking in all city parks, beaches, public plazas and boardwalks. If you get caught smoking in any of these places once the law comes into full force and effect, in about 90 days, there is a USD 50 fine. I am a non-smoker, so in the big scheme of things a ban of this nature bothers me nought. Yet, the reasoning for the ban is to protect non-smokers from the dangers of passive smoking. Now, I am sure most people can appreciate that passive smoking or being forced to suck-up the second-hand smoke from a smoker's cigarette in a confined space like a bar or restaurant is considerably different from smoking in a large open space like a beach.

I am no scientist, or chemist for that matter, but is second-hand smoke in a large public place a serious threat to non-smokers? On a slightly different tangent. Where are smokers going to be able to light up their cancer sticks and take the years off their collective lives?

After all, if I am not mistaken, tobacco is a legal product and those who wish to indulge in the habit are, and must be, allowed to do so. So, I wonder, where does Mayor Bloomberg and his health-conscious pencil-pushing tobacco banners proposing that cigarette smokers go to feed their nicotine cravings? Is the expectation that smoking becomes an exclusively home-based activity? Then again, perhaps the next smoking law will ban smoking in all private homes where their are children present.

I have always been intrigued by the argument that smoking is a human right and that restricting where it can occur is tantamount to violating the civil liberties of smokers. I am not quite sure where the balance is for those who do not smoke. So, do the human rights of smokers trump the human rights of non-smokers?

Considering, the ongoing onslaught against smokers to reduce the places where they can indulge, perhaps the answer is to take the plunge and go the whole nine yards; make smoking illegal, make tobacco illegal.

Smoking and Human Rights...

Is smoking a human right? The argument that bans prohibiting smoking violate the basic human rights of smokers or that they violate constitutionally guaranteed rights of citizens are arguments that have been tried and failed in a number of jurisdictions. The latest jurisdiction to have a crack at the "smoking bans violates my human rights" argument is about to unfold in Jakarta, Indonesia.

I am a non-smoker. And, to be honest, I am in favour of banning smoking in public places. If smokers want to smoke, then I believe that they have a right to do that. However, that right does not extinguish (no pun intended) my right to be in a smoke-free public place.

A smoking ban generally applies to public places, including bars and restaurants. The United Kingdom has had bans in place for some time. These bans have been challenged through the courts and failed. The courts have tended to hold that even the European Convention on Human Rights, particularly Articles 8 and 14 with regard to private life, family and discrimination, does not protect smoking as a recognised human right. The US is not immune to the drive to clean-up public areas from cigarette smoke. Although, the rate of success in this jurisdiction has been less than in some others.

Australia, for example has had a prohibition in place for some time. In fact, it is now illegal for people to smoke in cars where children are passengers.

The People's Rights Advocacy Team (TAHR) is set to argue that Gubernatorial Regulation No. 75 of 2005 as amended by No. 88 of 2010 discriminates against smokers. The TAHR argument states that the regulation criminalises a basic human rights and makes criminals of smokers who are partaking in a legal product. The TAHR lawyer, Habiburokhman has indicated that TAHR has submitted a judicial review petition to the Supreme Court and made a request of the President to review the regulation. However, these petitions have been submitted on behalf of other parties by TAHR.

Not content to pursue these petitions on their merit, TAHR have suggested that those in favour of the gubernatorial regulations, and those who pushed the regulations through the legislative process, were only doing so because they were the recipients of funds from foreign organisations. Strangely enough, TAHR, when pressed, were not so forthcoming in saying exactly who accepted what and where, or who, it was accepted from.

In essence, the same arguments in reverse are going to be lumped on TAHR and anyone in support of the petitions as being the puppets of big tobacco who are covertly funding these petitions. But, in a similar vein, the proof of who is funding what and where and when in this regard remains to be seen.

This might be a case that I follow as there are some interesting legal arguments to be made and precedents to be established.

But as an aside to the human rights of smokers, an interesting aspect of smoking bans is what impact they will have on employment levels at tobacco companies. Of particular interest is whether the ban will see a reduction in smoker numbers or demand for cigarettes. Any decline in demand is likely to see tobacco companies look to reduce staffing levels. So, I wonder who is looking out for the rights of employees to find suitable and sustainable employment. Is the government going to pick up the slack and provide for those employees who find themselves the victim of retrenchment? Perhaps this is an issue for a different blogpost.

Torture in Papua: What? A Trial?

The recent past has seen a number of videos of Indonesian soldiers torturing West Papuans have surfaced. One in particular, was especially graphic and gratuitous in the violence being perpetrated against the victims. The publishing of this video should have caused Indonesia significant embarrassment as it has continually claimed that Papuans for the most part want to be a part of Indonesia and that Papua is far less "restive" and "separatist" than the media portray it to be.

Unfortunately, the acute embarrassment that Indonesia feigned at the time passed very quickly. Suggestions that the type of brutality witnessed in the video was unacceptable and that the authorities would investigate fully and prosecute the perpetrators to the full extent of the law were greeted with some degree of skepticism . And, this skepticism has been proven to be justified.

Three Indonesian soldiers have gone on trial for their respective roles in the torture. However, they have not been charged with any offenses relating the physical abuse, the torture, that they committed. Instead they have been charged with disobeying orders.

At a military court hearing in Jayapura the reasons for the charge were laid out in the following terms:

1. Aside from the video there is no evidence that the three committed any offenses against the victims
2. The victims refused to submit any statements to the court.

The maximum punishment that could be imposed on the three is 30 months in a military prison.

To suggest that the trial is a whitewash of another dirty chapter in Indonesia's occupation of West Papua is an understatement. The outrages committed against the Papuans rival those committed against the people of Timor Leste. The difference, sadly, is that the UN was complicit in the integration of West Papua into the Republic of Indonesia through its participation in the fraud that was the "Act of Free Choice". It is estimated that almost one-fifth of the West Papuan population have perished during this often bloody occupation.

Yet, any serious consideration of Indonesia's ability to address human rights crimes must note that, the despite the enactment of a human rights law and the establishment of a human rights court, has been very, very, very poor. The President, Susilo Bambang Yudhoyono (SBY), is a former general and a man with many skeletons in his closet that for the most part he has been given a pass on because of the promise he offered for change when elected to the presidency. However, he is also the president that promised a grieving nation that those responsible for the assassination of Munir in 2004 would be brought to justice.

So, the suggestion that the Papuan victims of these more recent outrages would see justice was more "omong kosong". This trial and the litany of failures throughout the SBY first, and now second, terms as president highlight that the President is not in control of the running of his own administration. The "reformasi" (or reformation) period in Indonesia has been like watching a wayang performance where you can clearly see the puppets but never see the puppet master (dalang).

But, I digress. The point is a simple one: for Indonesia, like any other country, to move forward it must face up to the ugliness of its past with respect to the violations of human rights that have been perpetrated against Indonesians. Furthermore, there is a need to not only acknowledge that these outrages are continuing in the present, but to be pro-active in ensuring that they stop.

Free West Papua!

Thus endeth today's rant and rail.

Has Obama Quit Smoking?

Robert Gibbs, the White House Press Secretary, has said he has not seen the "Boss" on the cancer sticks for some nine months. However, he knows that the smoking habit (or addiction) is one that the President struggles with on a  daily basis. Yet, there has been some suggestion that Obama has gone "cold turkey" and no longer smokes. Let's face it, if the man was not smoking, he would surely be drinking, right?

But, in all seriousness, good luck to the man. He will be much better for it, if he has indeed pulled the plug and ceased to ingest the toxins that are cigarettes.

I am wondering whether the commander-in-chief quitting the smoking habit is going to have any direct impact on others? Will people take the Obama worship stuff to the level that they will quit too? Conversely, will Republican and Tea Party types start smoking just to prove how anti-Obama they really are?

The mind boggles.

I have never been a smoker. But, I am in support of laws and regulations that restrict where the habit can occur in public places. If smokers want to smoke and kill themselves in the process,then I am fine with that. If they want to argue that they have a human right to kill themselves with tobacco,then I am fine with that. But, if they want to invade my space with nasty cancer-causing fumes, then they are invading and violating my basic human right to life, and that is something they must be restricted from doing.

However, if I am stupid enough to go to a place where smoking is still permitted, legally, such as just about anywhere in Indonesia (although there are regulations in place to protect public facilities, but enforcement is slack), and ingest those nasty fumes then that is a personal choice of mine and the consequences are ones that I must live with.

So, what does the 'big man' say? Well, Obama acknowledges that it is a struggle and that it is one where he has fallen off the wagon on occasion. But, he is not a daily smoker. Giving credit where credit is due. That, sir, is a good start.

The images, if you are wondering, are pulled from the internet. Speaking of which, it would seem that the first two images are mirror reversed and one of them has been photoshopped. Iwill leave it to the experts to work out which one! The last one is really just to suggest that smoking is really like rolling up your own cash and burning it...priceless or pointless?

HIV and Indonesia: Personal Thoughts...

In light of the previous post, I am feeling a little in the ranting and railing mood.

HIV / AIDS is a scourge. It is the scourge of our time. We must dedicate all the resources that are required to ensure that we defeat. The decisions that need to be made are human ones and not political or business ones. The idealist in me believes that what I seek is possible. Yet, I am a realist and that reality is that politics and business will always play a role in how we as a community craft decisions for the greater good. So, it is in that frame that I would advocate increased resources being directed to education.

The simple truth is that if we cannot find a vaccine or a cure in the immediate term for whatever reason, then we have a responsibility to educate our youth, and anyone else who needs it, to ensure that they have the knowledge necessary to protect themselves from infection.

In the Indonesian case, this means that some hard decisions need to be made. Sex education and personal development education must become an integral part of the Indonesian curriculum. This is the case, even if it means standing up and staring down those who oppose such moves. A cold hard reality is that educators and government bureaucracy can no longer bury their collective heads in the sand and pretend that our children are going to abstain from sexual activity, including high-risk sexual activity. Forewarned is forearmed.

This educational process will need to start with educators themselves. Educators need to have the requisite content knowledge if they are going to successfully transfer that knowledge to students. Once there is a "core" of trained professionals, then these people can go out and educate others and our children. The process has to be uniform.

It is my sincere hope that I am uniformed on this matter. It is also my sincere hope that UNAIDS and the National AIDS Commission of Indonesia in association with a wide array of funders already have these programs in place and running.

There is a definite need for leadership on this front. Hopefully, the government of Indonesia can step up and take the lead.

Freedom for West Papua!

Freedom for West Papua is long overdue!

Disclaimer:
This post contains graphic footage of torture. Do not click play if you do not want to watch the embedded video.

The Act of Free Choice was nothing more than the granting of an open cheque book to Indonesia to rape and pillage the natural resources, and the people, of West Papua.

The Act of Free Choice was a farce then and remains a farce now. So, to stand idly by and let the universal, and may I add basic, human rights of our brothers and sisters in West Papua to be stripped away without fear or retribution is a sad indictment on all of us as people, as human beings.

You want to see, and understand, why this bothers me so...here, here, here, and watch the graphic torture footage.

I would like to know how this video footage came into the public domain. But it looks real, and I am sorry, but there is nothing that justifies this, absolutely nothing.

MUI and the Q Film Festival...

The MUI, the Indonesian Ulema Council, is always good for coming up with creative ways to characterise all manner of things, but let's face it human rights is not one of their fortes. So, it was mildly amusing to read that the MUI has decided that its position for opposing the Q film festival being held in Jakarta is that homosexuality is a breach of human rights.

The Q film festival is Asia's largest gay and lesbian film festival. The fact that it is being held in Indonesia is a victory for Indonesian gay and lesbian activists and for moderate Islam. Nevertheless, there are always those hard-liners who cannot accept nor tolerate difference. These people are not only the fanatics of the Islamic Defenders' Front (FPI) but also the upstanding interpreters of God's words at the MUI.

The rest of the MUI argument is that the French, German and Japanese governments are violating Indonesia's sovereignty by allowing gays and lesbians to screen films using their facilities. According to the MUI, homosexuality is just not the Indonesian way, it is not culturally acceptable, and besides all of these countries call themselves defenders of human rights but actively engage in permitting the abuse of human rights by tolerating homosexuality.

Aside from not being culturally acceptable in Indonesia, the MUI also makes the point that homosexuality is not tolerated in Islam either. But, most Indonesians would know this already in light of Tifatul Sembiring's recent tweets and his quoting of some relevant Sura. Yet, I can think of a few places where the practice of Islam is less moderate than in Indonesia but seems to be tolerated in the turning of a blind eye sense. Maybe, Ma'ruf should watch The Kite Runner, he might learn a thing or two about life.

Yes, if you are shaking your head and wondering whatever are they talking about, then you are not alone.

However, head shaking aside. The argument that homosexuality is a violation of human rights deserves a second look because it is an argument that I have not heard before. It is also an argument that I had to think about in order to get my head around it. After all, I figured that if we are all children of God then we are products of God and as such will be responsible to her (or him) come judgment day. But, it would seem, according to Ma'ruf Amin of the MUI, argues that homosexuality is a breach of human rights because God gave rights to men and women to marry each other, but not to men to marry men or women to marry other women.

Uh huh, now I get it, gay marriage is forbidden in Islam. Although, I am not a big fan of Wikipedia as an authoritative source of information, it is worth a read because it can quite often point one towards more authoritative sources. However, this Wikipedia entry on homosexuality in Islam is worth a read, particularly the part about the history  of homosexuality.

Detachment 88, Torture, Australian Funding...

There is nothing quite like getting rolled as Prime Minister, winning your seat in a hung parliament, being commissioned as Foreign Affairs Minister, and having to have discussions with your nearest neighbour as to whether Australian money is being used to fund torture; such is the life of Kevin Rudd.

I am guessing that Kev '07 has not actually had to have any discussions on this hot potato just yet, but rest assured these happy chats are on the horizon. Some officials from the Australian Embassy in Jakarta have already done some preliminary leg work in determining whether the allegations have any substance. It would be a rare occurrence in Indonesia if this sort of smoke was not based on a little fire somewhere. The chances are that there is some substance to these allegations.

So, what are the allegations? Detachment 88 is a special Indonesian police unit that was created to be at the forefront of counter terrorism initiatives in Indonesia. The unit receives substantial levels of funding, and training, from the Australian government. Detachment 88 was formed in the wake of the Bali Bombings. The number 88 represents the number of Australians who lost their lives in the first Bali Bombings. Other meanings for the number 88 range from the number 8 looks like a pair of handcuffs to 8 being a lucky number.

The allegations are that Detachment 88 were responsible for the torture of a number of activists / separatists in the province of Maluku from 2007 through to 2010. The torture includes beatings with wooden and steel bars, forced sexual activity, being burned with lit cigarettes, plastic bags being placed over prisoners' heads, and being stabbed with nails and other sharp objects.

This is a "no brainer". Australia must stop all funding to Detachment 88 pending a review of the allegations. If the allegations do not pan out, then the funding can resume with a much greater level of confidence in the understanding that the money is being used for the purposes intended. If the allegations are proved, then those guilty of committing crimes must be prosecuted to the full extent possible under Indonesian law.

Paying others to do our dirty work in ensuring that we remain safe as we travel in Indonesia does not allow us to hide behind the claim that end justifies the means or that we should turn a blind eye to the occasional indiscretion.

Are we prepared to let Detachment 88 torture Indonesians under the guise of counter-terrorism when really what they are doing is seeking to suppress domestic political dissent? Are the human rights of our neighbours negotiable because they are there and we are here?

What price are we prepared to pay for safety and freedom from fear?

Ho hum...

Munir -- Never Forget!

Maybe SBY's political legacy must be linked to the political assassination of Munir in order to convince the president that he has an obligation to see that those responsible for the killing are brought to justice. It seems that the current move out of the SBY play book is to sit this one out; if he ignores it for long enough then it will go away.

But, Mr. President, we will not forget.

Press Freedom and The Dangers to Journalists...

A free press is often seen as a hallmark of a mature democracy. The simple idea being that a free press in some way ensures that there is accountability and the culture of impunity and immunity is whittled away. However, a free press does not always guarantee the safety of those who wish to expose the excesses of some members of the community through their activism or their reporting. Indonesia has seen three journalists killed since February 2009. The latest, Ardiansyah Matra'is was pulled from a river in West Papua. Matra'is was naked and handcuffed.

Stop killing journalists!

Matra'is prior to his death was a reporter for Merauke TV. Matra'is death is also the culmination of a series of threats SMS-ed to journalists warning them that "if they played with fire they would be sure to get burned" and that they should be 'prepared for death'.

Matra'is' death follows the mysterious death of a Kompas journalist, Muhammad Syaifullah, in Kalimantan. The police have been quick to dismiss foul play, which suggests that the case theory as far as the police are concerned is that this was a suicide. Syaifullah had been reporting on the ongoing raping and pillaging of Indonesia's natural forests and resources by big mining companies.

These two deaths follow the death of Anak Agung Prabangsa of Radar Bali in February 2009. Prabangsa had also been the subject of threats after exposing irregularities in the building of an international standard primary school in Bangli, Bali.

It is time that the free press that is claimed to exist in Indonesia became free. The first step is to ensure that journalists can do their jobs in an environment where they are free from terror and threats of death and, in at least 3 cases in the last 18 months, death.

Police Promise Arrests, Not Justice...

In a closed-door meeting between police and a delegation of human rights and anti-corruption activists, the police have promised to make arrests in the beating of Tama Satrya Langkun. This promise should be taken with a grain of salt, or taken for what it means in reality.

An arrest is not the same as justice. If you doubt that, then take a look at the assassination of Munir in 2004. Until today, arrests have been made, prosecutions undertaken and convictions recorded, but it is debatable as to whether justice has been done. I would argue that justice has not been done.

Similarly, in this case, even if the police were to make arrests this week in line with their promise, this is not an iron-clad guarantee of justice being served. According to Usman Hamid, the former head of Kontras, the Chief of Police, Bambang Hendarso Danuri, asked that the activists be patient as these sorts of investigations take time. This is understatement in the extreme. Once again, the Munir case highlights just how much time the police might want to take in this investigation.

Nevertheless, the police have plenty on their plate at the moment thanks to the work of Langkun and the reporting of Tempo Magazine. The police are supposed to be releasing details this week of an internal investigation into allegations that senior police officers have substantial amounts banked in their personal accounts that are seemingly not able to be justified based on their known sources of income and assets.

I guess if one gives the police the benefit of the doubt, then they have until the end of the week to come up with some arrests. The question as to whether this leads to justice being done remains to be seen.

Photo courtesy of Antara via The Jakarta Globe.

Beating Activists in Indonesia...

Some things seem destined to never change. The fact that Indonesia seemingly does not take this kind of violence and brutality seriously only serves to embolden the perpetrators into believing that they can act with immunity and impunity. The Munir case remains unresolved; unresolved to any satisfaction to those who have suffered directly and to the great majority of Indonesians who suffer indirectly because of the president's, the government's, and law enforcement's desire not to pursue the case seriously.

This lack of action can be directly linked, at least in my humble opinion, to the recent brutal bashing and stabbing of Tama Satrya Langkun of Indonesian Corruption watch. Langkun is an investigator with ICW and has been prominent in the uncovering of alleged police corruption, particularly the publicising of some rather large deposits into the personal bank accounts of Indonesian police officers. Langkun was stabbed and beaten in a vicious attack in Duren Tiga in South Jakarta. He was riding a motorcycle with a colleague. The attack occurred at 3.45am. He is reportedly in a stable condition in a local hospital.

This was clearly not a robbery but rather a calculated attack against an activist. Nothing was stolen. In fact, the perpetrators revisited the scene of the crime after the attack to return Langkun's motorcycle helmet, which had been taken.

Indonesia claims to be a democracy where the rule of law prevails. This would be much easier to believe if the perpetrators of assassinations, such as that of Munir, and the political violence evidenced in this most recent attack were pursued and prosecuted to the full extent of the law. Indonesia might be a democracy, but it is a democracy where the 'old ways' continue to be tolerated and seemingly encouraged through the lack of action taken by the powers that be.

Maybe it is time for all Indonesians to take a stand and demand something more than lip-service to the ideal of good governance, clean governance, democracy, and human rights from their fellow Indonesians in government and law enforcement.

It could be a long wait.

The photo was sourced from The Jakarta Globe via Facebook.

American Violet...

I have not done a movie review for a while. There is good reason for this, I have not watched any movies! Doing a Masters is always a lot of work I am told. I am doing it in accelerated mode, so I am doing a 150% load. Anyways, enough with the excuses and back to the review.

I am not sure what made me pull this movie out of the pile of 50 or so that arrived home with my parents after their recent jaunt to Bali. But, I like Will Patton as an actor, and I saw his mug shot on the cover of the DVD and thought, why not? Besides, there was the added attraction of it being supposedly based on real events. And, it was about how the law can be used and abused by those with an agenda. I did a law degree because I wanted to help those less fortunate and those who always become the victims of those in power who seek to use and abuse the power that they have been given.

The film was American Violet.

The film shines the cold, hard spotlight on race relations in the US. It is particularly scathing in terms of the portrayal of power and how that power is used to racially profile and discriminate. It was also interesting to hear that in the US somewhere in the vicinity of 85% of all criminal cases end with a plea deal (personal note: go check this out). It is a scary statistic in that plea deals often force innocent people to plead to crimes they did not commit in order to avoid a much harsher penalty. Yes, I am sure there are figures out there that show that people who have committed serious crimes exploit the plea deal system to garner a lighter sentence than they deserve. But, it is my review!

For me, this was an excellent film. It was powerful and simple in its depiction of racism. It was equally powerful in terms of its message, little people can sometimes beat the odds and win. It is not a movie that everyone will enjoy, but you cannot please everyone all of the time.

The film is based on a raid of a poor black housing project in Arlington Springs (Texas) in 2000. The raid for drugs was based on the grand jury testimony of a single informant. The raid ensnares single mum, Dee (Nicole Beharie). Dee is accused of selling drugs in a school zone which sees her facing somewhere between 15 and 26 years in prison. Ultimately, the District Attorney offers her a plea deal; a ten-year suspended sentence. To get this deal she must plead guilty. A guilty plea has significant repercussions, not only is Dee a felon if she does, but she is also likely to lose any benefits that she receives. Dee chooses to fight.

However, she is not in this fight alone as the American Civil Liberties Union (ACLU) appears and offers to take her case as a means of highlighting the racist nature of the raid. In essence, the case becomes a significant test case on racial profiling and the use of single informants in grand juries to secure arrest warrants, at least in Texas.

This is a movie with a feel good ending. Although, the end credits include a note that the District Attorney who is responsible for Dee' predicament manages to secure re-election to the position of DA. So, despite the feel good nature of the ending, the reality remains that obviously a vast majority of the voters in the relevant area seemingly agree with the vision of the DA.

I recommend the movie (not that this means anything in the grand scheme of things). It is an enlightening and entertaining 103 minutes.

Raped by a Genie -- Indonesia

This is one of those stories where you find yourself sitting back in your chair as you read it and shaking your head incredulous to how creative some people are when they plan to do something wrong or have been caught out having done something wrong. I guess I will never be a novelist because it had never occurred to me that one could blame their raping of a 15-year-old student under their care on a genie that had not been fed in a while.

The story goes that a principle at an Islamic Boarding School in Tangerang, Banten, West of Jakarta, raped and impregnated a 15-year-old girl under his care. The young girl had not revealed the rape to anyone, but it became increasingly difficult for her to conceal her pregnancy.

The girl, who has been identified by the initials KHF, alleges she was raped by the principal. However, the principal has supposedly said that it was not him but rather the genie that did it. The principal, who has been identified with the initials HDN, allegedly told the girl that if she had sex with him or the genie, then the genie would give her special powers. The girl claims she rejected the genie principal's advances and in her embarrassment decided against reporting the incident.

It would seem that the genie was not to be denied. A few days later the girl again found herself alone with the genie principal. However, this time she claims that she became incapacitated in the presence of the genie principal and when she later regained consciousness she was sore in places where she should not have been sore.

This is where the story gets even a little more bizarre. The girl's parents confronted the principal, as you would if your daughter had told you she had been raped by her principal. However, the principal denied that he raped the girl, but apparently confessed to the parents that it was his pet genie that did it. And, that the genie probably did it because he had not been fed in a few months. But what is really weird is that the principal agreed to a DNA test and is seemingly pretty confident that the DNA results will prove that he did not do it and that the genie did.

Nah, if my understanding is correct then the genie sort of appears and takes over the body of the host and then has his way with the girl. If this is the case then I am thinking that perhaps the DNA of the host rather than the genie is likely to turn up in any subsequent DNA test. Then again, I am no scientist, so I do not know for sure how these things work.

I am wondering whether this is a confession that there have been other girls who have fallen victim to the hungry genie in times previous to this account.

Nevertheless, it seems that the principal has realized that the allegation of rape of a minor is a little more serious than he envisaged at first and he is now backing away from the genie claim. The principal is now suggesting that the young girl is pregnant to her boyfriend and in her embarrassment and shame on that front she is seeking to blame the principal for her troubles.

The Indonesian Legal Aid and Human Rights Association (Perhimpunan Bantuan Hukum dan Hak Asasi Manusia Indonesia / PBHI) has taken up the case, and they have reported the alleged crime to the Indonesian police who are now reportedly investigating the claims. Perhaps they need to get a psych report done on the alleged perpetrator who seemingly thinks he is harbouring a genie or two.

Another interesting twist in this story is that the principal's family are now claiming that it is impossible for him to impregnate the young girl because he is a diabetic with extremely high blood sugar levels. And, the family claims, that it is a medical fact that diabetics cannot get erections. The family does not seem to be entertaining the idea that the genie did it either. But there have been no reports as to whether the genie is diabetic as well.

Apparently the DNA tests have been done and when the results come back from the lab, then it is expected that the families of the girl and the principal will have a clearer picture of what transpired or did not transpire. As will the police and just about everyone else following this story.

Justice -- Indonesian Style?

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

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

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

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

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

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

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

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

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

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

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

The Empire State Building and 60 Years of Communist Rule in China...

New York City has decided to commemorate, and perhaps honor, sixty years of communist rule in China by lighting up the Empire State Building in red and yellow lights.

This has not pleased everyone. Those that oppose the move, albeit now being too late, state that this act in effect endorses China's totalitarian government and abysmal human rights record in places like Tibet and the recent crackdown on the Uighurs in the Xinjiang region.

It is certainly an interesting choice considering the Chinese government has a record of suppressing freedoms, such as the freedom of speech, the freedom of expression, and the freedom of association, to name but a few. So, a legitimate question would be, "why is the home of the brave and the land of the free honoring a land whose government seemingly does not believe in those ideals?"

(Photo courtesy of AP)

The ISA in Malaysia -- Protests, Tear Gas, and Water Cannons

The Internal Security Act, or ISA, is a law that allows police in Malaysia to detain people without trial in certain circumstances. The primary concern for most is that the ISA does not recognize some basic human rights with respect to the idea of a right to a speedy and fair trial. The ISA is designed, according to its supporters, to ensure that Malaysia's domestic security is protected from all threats. In essence, the ISA gives the authorities the right to undertake pre-emptive or preventive detention.

As this as a backdrop, some 15,000 Malaysians seeking to have the ISA removed from the statute books took to the streets (photo courtesy of Reuters). If I was Malaysian, and perhaps even if I wasn't but just there, I would have taken to the streets too. Human rights are human rights. These basic human rights, no matter what the former Malaysian Prime Minister, Mahatir, says, are not based on western or eastern / Asian values. Human rights are human values, simple.

In Kuala Lumpur the 5,000 police on hand were seemingly outnumbered by protesters. Nevertheless, police had at their disposal water cannons and tear gas, both of which they were prepared to use, and did so.

At least 175 people have been arrested in this heavy-handed assault on a peaceful demonstration. According to Anwar Ibrahim, the former Deputy Prime Minister and one-time jail inmate, the police action was not only unwarranted but unnecessarily brutal.

The current Prime Minister, Najib Razak, has called the protest unnecessary as he has already agreed to review the ISA. However, it would seem that at least 15,000 Malaysians do not believe him and are prepared to make their lack of faith in the PM known.

Compulsory and Optional Voting -- Indonesia

This has appeared previously on en.hukumonline.com - here.

Optional and compulsory voting is always an issue that draws a great deal of commentary. However, when in a country such as Indonesia where voting in a general election is optional, the issuance of a fatwa by the Indonesian Ulema Council (Majelis Ulema Indonesia / MUI) is certain to ratchet up the rate in which commentators express their views, particularly when the fatwa states that not to vote is haram or prohibited where there are qualified Muslim candidates standing.

Indonesia has traditionally had a sizable number of individuals who choose not to exercise their democratic rights and vote. This group is referred to as the Golongan Putih or Golput group. They are in essence a group that abstains from voting. Whether this is an expression of dissatisfaction with the quality of the candidates being offered or a lack of interest is irrelevant. However, some have suggested that it is likely that somewhere around 40%, if not more, of registered voters will not exercise their right to vote in the 2009 elections.

The Muslim community seems split on whether Islam considers the expression of democratic freedom through a decision not to vote is haram. Abdurraham Wahid, who is affectionately known as Gus Dur and who is a former President of Indonesia and an influential figure in Nahdlatul Ulama (Indonesia’s largest Muslim organization), has been active in campaigning for people to take golput seriously.

On the other hand, the Prosperous Justice Party’s (PKS), Hidayat Nur Wahid, explicitly stated that golput is prohibited under Islam and has pro-actively campaigned for the MUI to issue the fatwa. Perhaps, somewhat cynically, Hidayat believes that the PKS is likely to benefit from those disaffected voters who feel compelled to comply with the fatwa.

The House of Representatives (DPR) have also weighed in on the matter with the Head of the DPR, Agung Laksono, arguing that the right to vote implicitly contains a right not to vote and as such golput cannot be haram. According to Laksono, political parties must take heed of the increasing numbers of golput-ers as a sign that political parties have failed in translating their respective visions into policies and action on the ground that positively affects the lives of their constituents. To his mind, the fatwa is a mistake.

The reaction to the fatwa has been widespread and varied. The National Commission on Human Rights (Komisi Nasional Hak Asasi Manusia / Komnas HAM) issued a press release on 2 February 2009 that states simply the fatwa is a violation of people’s human rights to exercise the right not to vote. Ifdhal Kasim, the Head of Komnas HAM, stated that the right to vote or not to vote was a basic human right that cannot and must not be interfered with.

He cites that this is a Constitutional guaranteed right that has been further strengthened with provisions in Law No. 39 of 199 and Law No. 2 of 2005. Ifdhal points out that the government has already ratified the International Convention on Civil and Political Rights, which means that “societies or government could not limit this right through prohibition, criminalization, or imposing moral sanctions on people who did not use their right to vote”.

The General Election Commission (Komisi Pemilihan Umum / KPU) who is tasked in carrying out the election, according to Ifdhal, is restricted by its mandate in that it does not allow them to issue any regulations which would impinge on the absolute rights of individuals to choose whether they vote or do not vote in a general election. However, the Head of the KPU, Abdul Hafiz Anshary, has been vocal in his support of the fatwa issued by the MUI. He has openly and publicly wondered why the MUI has only acted now on this issue.

According to Hafiz it is the MUI’s responsibility to supervise Muslims in order to see that Muslims exercise their rights in terms of voting for qualified Muslim candidates. In fact, Hafiz was unequivocal in stating that “not only cigarette are haram, but golput also haram.” This is in reference to another MUI fatwa that prohibits cigarette smoking in certain circumstances.

It is worth noting that MUI fatwas are not binding in a legal sense and it remains to be seen whether the fatwa has any moral force in terms of convincing potential golput-ers to vote.

(RAB / SH)

The Pornography Law -- Judicial Review

This has appeared previously on the en.hukumonline.com website - here.

The debate on the pornography law seems to be a never ending one and is set to continue in the Constitutional Court on 23 February 2009. On 9 February 2009, in a move without any fanfare or announcement, eleven individuals filed a petition in the Constitutional Court seeking a judicial review of the Pornography Law. The petition seeks to have Articles 1(1), 4, and 10 repealed as constitutionally invalid.

The petitioners, among others, include Billy Lombok (Minahasa Christian Gospel Church), Jeffrey Delarue (Indonesian National Youth Committee of North Sulawesi), Janny Kopalit (Manado Catholic Youth), Goinpeace Tumbel (North Sulawesi Indonesian Christian Youth Movement), Bert Supit (Minahasa Cultural Council), and Charles Lepar (Manado Inter-Church Youth Forum). To represent them in the judicial review process, they have engaged O.C. Kaligis as their lawyer.

The substance of the petition is not surprising and is representative of much of the debate on the validity of the pornography law to date. The first claim as it relates to Article 1(1) is that the definition of pornography is too broad and as such is all-encompassing. The petitioners are arguing that such a broad definition will catch legitimate art and other traditional cultural practices under the definition.

The crux of the argument is that with such broad cultural diversity in Indonesia from Sabang to Merauke that it is unfair to have such a broad definition. Simply, what is acceptable in Papua might not be acceptable in Aceh. But, that lack of acceptance must not see the conduct criminalized as pornography or indecency.

Nevertheless, it will be interesting to see whether the Constitutional Court reads the pornography law as a whole or only the individual articles. The reason for this is that the government continues to maintain that the law specifically protects certain art and cultural traditions under other articles within the law. The petitioners despite representing an eclectic mix of church and youth organizations, they are also artists who feel that they have a legitimate grievance here in light of some of the art that they produce, such as carvings and paintings, would seemingly fall foul of the definition.

An angle adopted by the petitioners, and worthy of note, is that as working artists who earn a living and support families from their artistic income the pornography law discriminates against them and in essence violates their right to work. This is the substantive argument against Article 4.

The problem, as the petitioners see it, with Article 10 is that the article is open to multiple interpretations. The petitioners seem to focus on the term “depict nudity” and the definition may vary from one region to another in terms of what is considered to depict nudity. The argument seems to rely, similarly to Article 1, on the fact that Indonesia is a country with a rich history of pluralism and cultural diversity.

However, in a generic sense the term, depict nudity, is not problematic. Simply, what is depicting nudity in Aceh will still be depicting nudity in Papua. The difference is whether or not the current law would provide an exception for the depiction.

On the sides to this petition there are still many within the community that take issue with the pornography law. One issue that continues to arise is related to enforcement and how law enforcement agencies, irrespective of whether they are the police or the Office of the Public Prosecutor, intend to enforce the provisions that many consider to be problematic.

At various times both the National Commission for Women and the National Commission for Human Rights have invited law enforcers to discuss in detail the proposed implementation and subsequent enforcement of the provisions of the law. These organizations generally focus on the broadness of the definitions and the all-encompassing nature of these definitions as the basis of their rejection of the provisions of the law. In this case Article 4 was also noted as being most problematic.

However, the police see the law as a valuable tool in combating crimes related to pornography. Nicolas A. Lilipaly, Head of the Pornography, Indecency, and Morality Unit at the Metro Jaya Police Headquarters, is unequivocal in stating that the Pornography Law has enhanced the police’s ability to deal with pornography, which had to date been dealt with under provisions of the Indonesian Criminal Code.

In another interesting aside and also related to the pornography law, the Chief Judge of the Central Jakarta District Court, Andriani Nurdin, stated that where laws exhibit weaknesses then the duty falls to the court to exercise their discretion and interpret the provisions as they appear or to create the law where the legislation remains silent. There is likely to be some serious questioning of this kind of judicial activism of the bench from the community, particularly if the courts were to use their discretion in ways that clearly exceeded the intent of the parliament when drafting the law.

This latest installment in the debate on pornography is certain to keep the issue alive within the community.

(RAB / SH)

Domestic Servants -- Legal Protections?

Overview

The Draft Bill on the Protection of Domestic Servants intends to formalize a type of work that was always a part of, and currently remains, the informal employment sector. The rationale is that while these types of domestic service remain a part of the informal employment sector then these workers are potentially subject to abuse and have little or no protective mechanisms to support them when their employment situation turns bad.

Human Right to Work
The government characterizes work as a human right and one that is to be protected. Work is to be a situation where you are paid in accordance for the value of your work and at a level equal to your skills and capabilities. The Draft Bill is explicit that this is to happen without discrimination. The 1945 Constitution of the Republic of Indonesia after amendment includes a basic “Bill of Rights” and among those rights is a right to work.

Therefore, this Draft Bill is intended to give some effect to that right and to ensure that adequate protections are in place for this right to work to be fully realized. The relevant articles of the Constitution are:
· Article 5(1);
· Article 27(2);
· Article 28A; and
· Article 28D(2).

Two Concurrent Versions of the Draft Bill
There are currently two versions of the Draft Bill in circulation. The first is a Non-Governmental Organization version and the second is a Government version. The version here is the government one.

The government version provides an explanation in the Elucidation as to why the term “pekerja” has been chosen in preference to “pembantu”. Generally, in the context of the home, pekerja would translate to domestic servant. In contrast, pembantu would translate to maid or more specifically, house maid. It is clear from the title of the Draft Bill that the term is intended to be the broader and all encompassing pekerja rather than the more restrictive pembantu.

Features
The most striking feature of the Draft Bill is that it will require all domestic servants to be employed based on either a written or oral work contract that guarantees some basic rights such as:
· to be treated humanely;
· welfare;
· health;
· work safety; and
· any other rights included in the work contract.

This is a striking feature because it is rare if not unheard of that domestic servants are employed on anything other than a basic verbal agreement. These oral contracts are difficult to enforce and general offer little or no protection for domestic servants. This very much leaves a domestic servant at the whims and discretion of their employer. It is interesting that the Draft Bill maintains these oral contracts.

However, in terms of contracts between the end user and domestic servant placement agencies, these contracts must be written and clearly set out the rights and obligations of each of the parties.

These features are contained in Article 3 and unfortunately the Elucidation to this Article states no more than it is “self-explanatory”. For example, is the entitlement to health to be evidenced by the employment taking out health insurance on behalf of the domestic servant?

It is clear that the socialization process needs to address some of the specifics of the protections to be afforded. Simply, without greater clarity in terms of what health, welfare, and work safety entail then both compliance and enforcement will be subjective and difficult.

Scope
The scope of the bill is all domestic servants and not just house maids. The provisions cover the following individuals, among others:
1. house maids;
2. caretakers;
3. baby sitters;
4. nannies;
5. governess;
6. gardeners;
7. personal drivers;
8. private security; and
9. private tutors.

The types of employment covered are both live-in and live-out, but all have some relationship to the maintenance of the home or a home environment.

Direct and Indirect Recruitment
The provisions of the Draft Bill cover both privately recruited domestic staff and those recruited and placed through agencies.

Article 5 expressly states that the employment of a child requires the written permission of the parents or guardians of the child. In difficult economic times it seems very likely that this permission will be easy to obtain as parents and guardians will see their 15 – 17 year old children as a source of income. This particular provision appears to run counter to Indonesia’s stated commitments to the protection of the interests of children through to the age of 18.

The Draft Bill sets out the minimum requirements that must be met during the recruitment process in order for an individual to be employed as a domestic servant. These requirements, among others, include:
· possess a self-identity;
· be at least 18 years of age;
· where the age is between 15 and 17, recruitment is for specific purposes;
· the existence of an agreement between the employer and the domestic servant; and
· possess the requisite skills for the work envisaged.

Minimum Age and Child Labor
Interestingly, the Draft Bill seems to set the minimum age limit for domestic servants at 15. Article 6 explicitly states that it is prohibited to employ anyone under 15 as a domestic servant. At 15 one is still a child and this would seem to be legislating positively for the legitimizing of child labor.

Although the Draft Bill seems to modify the work that 15 – 17 year olds can do to “specific tasks” and be limited to four hours of work. And, as noted previously the child can only be employed after the permission of the parents or guardians of the child has been obtained.

Rights and Obligations
The Draft Bill sets out the rights and obligations that domestic servants must enjoy. These rights include:
· the right to a reasonable wage;
· a right to know the type of work that they will be doing;
· an allowance of one month’s salary for their relevant religious holiday;
· weekly and annual leave;
· a right to add knowledge and a right to access information within the framework of improving work productivity;
· a right to communicate and to receive communications from their family;
· an opportunity to organize or unionize;
· breastfeed any children that they have;
· an opportunity to practice their faith;
· a right to maternity leave;
· a right to occupational health and safety (inclusive of reproductive rights);
· a right to not be subject to violence; and
· a right to three sets of clothes annually.

The obligations include:
· to perform their work in accordance with the work contract;
· maintain morality and security in their place of work;
· maintain the good name of the family and protect any confidential family information that they may obtain;
· notify within at least 15 days of any intent to resign;
· complete all work properly; and
· assist in the maintenance of the peace, harmony, and security of their place of work.

The Draft Bill also sets out the rights and obligations for both the employer of a domestic servant and also the rights and obligations for domestic servant placement agencies. For example, the employer of a domestic servant has a right to obtain information on the domestic servant employed. Unfortunately, the Elucidations to this Article provide no insight as to what this information might be. Nevertheless, this information presumably includes such things as the name and age of the domestic servant as well as such information as a home address and previous work history (if any), among other information.

Domestic servant placement agencies have a right to receive payments for their services in providing domestic servants to an end user or employer. The size of any fee is to be stipulated in the written agreement that is to be signed by both the placement agency and the employer.

Termination of Work Contracts and Wages
A work contract can terminate for any number of reasons. However, some specifics are listed in the Draft Bill. These include the death of the domestic servant (and presumably the employer), the period of the work contract has expired, a situation arises that is outside the ability of either party to overcome, and by mutual consent, among others.

If the domestic servant wishes to sever the employment contract, then the domestic servant is to provide 15 working days notice of their intention to do so.

The Draft Bill envisages that the minimum wage for domestic servants is to be set by Provincial Governments, Municipalities, and Cities in accordance with the economic conditions of the respective locations. In addition, the Draft Bill provides that the employer and the domestic servant can agree to any other incentives that they wish.

Work Hours and Leave
The drafters have realized that setting any specific times for work negates the reality that is domestic work; simply the only way to regulate time is on a flexi-time schedule with a maximum number of hours per day that may be worked. The maximum number of hours per day has been set at ten.

In terms of leave, a domestic servant is entitled to one day off per week. Presumably this day is by mutual consent of the domestic servant and the employer. This is in addition to a mandatory minimum six hours of rest per day. Interestingly, this six hours of rest does not seem to be a continuous six hours but potentially it could be in one hour lots or similar.

A domestic servant becomes eligible for 12 working days annual leave once they have worked for the employer for 12 consecutive months.

Dispute Resolution
Any dispute is to be resolved by negotiation between the parties in conflict. If this negotiation does not reach a settlement that is mutually agreed by the parties, then the dispute is to be resolved by involving the Neighborhood Head (Rukun Tertangga / RT) and the Community Head (Rukun Warga / RW). If the involvement of the RT and RW fail to get the parties to reach a mutually acceptable settlement, then the parties can then escalate the dispute to the courts.

The reality is that these provisions as they relate to dispute resolution seek to redress the power balance between the employer and employee (domestic servant). Traditionally, domestic servants have had very little power and have generally been at the whim of their employer. The option of alternative dispute resolution and, if need be, the courts mean that domestic servants will have some legal protection from arbitrary actions of their employers.

Supervision
It is expected that primary supervision will be by the relevant service division of the Department of Labor and Transmigration. It is also envisaged that the RT and RW will play a role in the supervision on a much more local level.

Sanctions
The basic sanctions in the Draft Bill are administrative in nature and cover breaches of Articles 11, 13, and 17. The sanctions include written warnings, temporary suspension of the activities of placement agencies, cancellation of licenses, and the cancellation of work contracts, among others. However, it is expected that additional sanctions will be included through specific Ministerial and Regional Regulations.

Enactment
The Draft Bill will come into immediate force on its enactment.

Conclusion

It is clear that the government is intent on providing enforceable protections for domestic servants. It is also clear that in order to achieve this there is a need to formalize the employment situation from its current informal nature.

However, there appears to be some serious shortcomings if the intended purpose is to take these types of work from the informal to the formal. For example, it would make sense that the work contract between the domestic servant and the employer is in the written form. This would ensure that there are better prospects for enforcement in the event that the employment relationship breaks down.

Nevertheless, the intention is an honorable one.

The Draft Bill is currently in the socialization phase. It is expected that there will be considerable input from various stakeholders and therefore the final version of any bill that reaches the House of Representatives to work through the Commission and Committee processes prior to any enactment is destined to be quite different from the current versions.

Postscript

By way of explanation. This is a revised copy of something I have written for some other purpose. Perhaps some will be interested in the substantive matter that it covers and some won't be interested at all. Nevertheless, I guess if you live in Indonesia and have the luxury of any of these domestic services such as a house maid or two, drivers, gardeners, and the like then the draft bill is likely to be of some interest to you.

We have a domestic servant, a house maid. She is excellent. She works hard and is reliable. however, having read through the provisions she seems to be on a pretty good thing already working for us. Her salary is above average and once she has done the obligatory chores then her time is pretty much her own. Like for example tonight, she asks if she can stay the night with some family who live near by. We have no problem with that and so off she goes.

Provided there are no significant changes to the basic provisions of the draft bill then we are already in compliance. So, perhaps we can tighten the screws a little and make the conditions our house maid works under to comply with the absolute minimum.

Just kidding!