The Problem with the Indonesian Remission System...

This is probably not an expose on the scale of Wikileaks. However, thanks to my mate Treespotter, we do have access to some interesting documents that highlight how poorly organised the remission system is in Indonesia. The files attached to his post relate to the case of Artalyta Suryani or Ayin. Ayin was convicted and sentenced to prison in a corruption case. She was found guilty of bribing a prosecutor.

Ayin's case did not end there. She decided that as a woman of means, she would spruce up her cell a little. So, in agreement with the relevant jail authorities she co-opted a couple of cells and made them into a little fiefdom where she ran a beauty salon and a karaoke parlour. Her enlarged cell also had a visiting room where she could entertain guests.

Unfortunately for Ayin, the word leaked regarding her luxury set up and a random raid uncovered her souped-up cell arrangement. Her punishment was that she was not to receive a remission in 2010. Remissions are at the discretion of the relevant authorities. These authorities are ultimately at the discretion of the Minister for Justice and Human Rights who will have the final say on a remission. Nevertheless, it was a surprise to see a convict who was not supposed to be getting any remissions in 2010 because of her bad behaviour end up with a remission of 2 months and 20 days.

In the words of Treespotter:

"Hypocrisy really knows no bounds".

Perhaps it is time that Indonesians stopped buying into this diversion called SBY and came to understand that there are obviously more powerful interests above the president that really run the show in Indonesia. The war on corruption is an illusion and the president is a fraud.

In essence, the first document authorises a remission for Ayin. The second document, at point 5, notes that Ayin is not to be granted any remissions in 2010.

This whole sorry saga is seemingly another black mark against the name of the Minister for Justice and Human Rights who simply has no control over the Ministry that he leads. Then again, with a leader like SBY, what does a lowly minister have to fear. The president is too busy trying to sure up his legacy and promote himself as an international statesman worthy of the Secretary General's post at the UN to be too worried about undeserved remissions for corruptors.

Ho hum...

Has Indonesia Turned the Economy Corner?

I really should get back to writing more dry analysis of business and economics news and the legal frameworks that impact those two areas in Indonesia. Sometimes, I miss writing for a captive audience. My previous life at hukumonline.com afforded me that opportunity.

The amount of money coming into Indonesia through 2010 is the most to be placed since 1998. The amount is a rather impressive USD 23.3 billion. This has been driven by consumers and resources. However, it is interesting that some are suggesting that the biggest factor in this surge of investment is thanks to President Susilo Bambang Yudhoyono (aka SBY). According to those in the know, foreign lawyers, the resurgent confidence is directly related to SBY's ability to fight corruption and terrorism combined with his drive to raise the levels of spending on critical infrastructure.

To be honest, I am not sure that a lot of others, who would also consider themselves to be in the know would agree with this assessment. There is no doubting that the Indonesian economy is going great guns in terms of investment. This might just as easily be attributed to the idea that some investors have reached a point where any risk is justified by the potential returns. It may be that it is simply no longer an option to wait and see and get left behind.

The idea that corruption is under control and that the Indonesian judiciary is sufficiently reformed to make business transactions certain is tantamount to burying one's head in the sand. A recent speech by the former Finance Minister of Indonesia, Sri Mulyani Indrawati, highlighted just how prevalent corruption is and how much of a threat it still is. I would argue she might know about these things, particularly when one considers most people believe that she moved to her current position at the World Bank after getting worked over by Aburizal Bakrie and a compliant SBY when she sort to clean house at the tax office.

The judiciary is still a long way from being an organisation that provides legal certainty to business players. Judges are still on the take. Police officers and prosecutors are also on the take. The recent case of Gayus Tambunan and his ability to get out of jail highlights.

Nevertheless, the surging business environment is providing plenty of legal work, and the numbers of accredited foreign lawyers working in Indonesia has risen from 20 to 50. I will need to make some calls and get the relevant data to substantiate this because as I recall there were like 40-odd accredited lawyers in the beginning of 2009. All foreign lawyers must be accredited through the Indonesian Bar Association (PERADI) if they are to work in Indonesia. It is worth noting that there are a significant number of foreign lawyers in Indonesia who are not accredited by PERADI. This is achieved through technicalities as the foreign lawyer is not employed as a lawyer, but rather in some other capacity.

With all these things to be considered, the question is "has Indonesia turned the economy corner?"

Defamation in Indonesia -- The Prita Mulyasari Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The appeal is something I will certainly be watching.

Perception and Reality

It seems that the recent survey by the Political and Economic Risk Consultancy Ltd (PERC) that ranked Indonesia as the worst of the 12 Asian countries surveyed has raised an interesting debate about the reality of perception and the perception of reality.

The survey per se is not all that controversial as it asks those surveyed for their opinions based on their perceptions. However, what the survey has done is to highlight how perception and reality can diverge. The survey has also highlighted why perhaps some of those Indonesian institutions who have embarked on comprehensive programs of reform might want to also consider getting some public relations help in order to highlight these reforms in the public domain.

Arsil, a researcher from Lembaga Independensi Peradilan (Institute for an Independent Judiciary / LeIP), which focuses exclusively on judicial reform in Indonesia holds a similar opinion. Arsil feels that the results of the survey highlight the disgraceful reputation that the judiciary and the judicial system have in Indonesia. Nevertheless, Arsil was quick to note that the survey was more about perception than anything else and perception is a reflection of the ability of the courts to management their public communications. The simple philosophy here is that it the courts better manage the flow of information about itself then the public will have access to better and more accurate information on which to base any future judgments or perception.

The courts have been subject to significant judicial reform and this process of reform is ongoing. However, Arsil sees a critical mistake and that is how the Supreme Court manages the reform process internally and then projects this information to the broader public. The reality is that the public can only form their perceptions based on the information that they have at their perusal.

Not all of these reforms have a direct impact on the public and an example of this is a Decision by the Chief Justice contained in Decision No. 144 of 2007. This Decision was the first of its kind for an Indonesian institution and required a greater level of transparency in court processes. Even though the focus of the Decision was internal transparency within the courts it would have nonetheless been good public relations for the court. However, it was decided that because the Decision had no direct impact on the public then it was not necessary to promote this reform publicly.

Clearly the party most responsible for changing the image and consequently the perception of the Supreme Court is the Supreme Court itself. Unfortunately, to date the Supreme Court has been what can best be described as passive. In contrast the police have been active in publicly promoting police reforms. However, the lag time between publicly promoting reform and a change in perception is considerable.

The reality is that there is a distinct connection between the perception of the institution and the public’s trust in that institution. Poor perception means a low level of trust. This in turn leads to a credibility problem in that the public does not see the institution as being credible with regard to its primary function. In the case of the Supreme Court this means that the negative perception results in a belief that the Court is not a credible law enforcement agency.

Mas Achmad Santosa, a highly regarded legal practitioner active on law reform matters, stated that he can see the survey itself from two perspectives. First, he sees it from the perspective that any law or judicial reform efforts undertaken by the Supreme Court are yet to yield any concrete results with respect to public perception. Second, poor public communication in terms of self-promotion of the initiatives undertaken and the successes achieved.

To overcome this it is clear that the Supreme Court needs to do two things according to Mas Achmad Santosa. Firstly, an internal evaluation of the reforms undertaken to date and a catalogue of successes created. Secondly, there needs to be a communication strategy developed so that the Supreme Court can better promote the reforms undertaken. It is thought that the best means of developing a successful communication strategy would be to work with the Department of Communication and Information or perhaps even the Indonesian Capital Investment Coordination Board (Badan Koordinasi Penanaman Modal / BKPM).

The BKPM might seem like a strange choice. However, as Mas Achmad Santosa points out, part of the BKPM’s role is to provide a source of information to current and potential capital investors in Indonesia about the legal framework, the degree of legal certainty, and the legal system in general. It is well within reason that the BKPM as part of this information strategy also publicize court reforms, particularly if there is an impact on business.

In a purely business sense the failure of the courts generally and the Supreme Court specifically to successfully communicate reforms means that the impact of surveys such as this one can be far-reaching. Investors will think twice before investing in Indonesia if they take the results of this survey at face value. An under-performing and corrupt legal and judicial system is most likely to be seen as a hindrance to good business. To overcome this potential problem the court must ensure that reforms remain on track and a communication strategy must be developed as a matter of urgency.

To this end Mas Achmad Santosa provided an example of where the Head of the Religious Court had been sanctioned for an indiscretion. The sanction itself highlights that the Supreme Court is more serious than it has been in the past to clean up its image. However, the fact that the sanction was never communicated to the public meant that the public knows nothing of the sanction. The question is then, “how can the perceptions of the public towards the courts change if the reforms and sanctions are never communicated?”

Mas Achmad Santosa is still hopeful that the Supreme Court can develop this communication strategy and better inform the public of the progress being made.

Interestingly, not all people agree that there is a difference between the reality and the perception when it comes to the performance of the courts. Emerson Yuntho from Indonesian Corruption Watch (ICW) was unequivocal in stating that the results of the survey not only reflect the perception but are close to the truth. In Emerson’s view the idea of controversial verdicts and corruption in the court system or the judiciary is not a perception but a fact and consequently the perception and the reality are the same. One of the key problems that Emerson sees is that the courts themselves are not taking these matters seriously and cites the fact that judges who accept bribes and are guilty of other misconduct are, at best, subject to administrative sanctions. Therefore, when people see judges getting away with merely administrative sanctions then public confidence in the judiciary is eroded even further.

Emerson was far more skeptical when questioned about Supreme Court reform. When asked about this Emerson answered the question with a question, “what has the Supreme Court done?” In his opinion the only reforms of note have been with regard to ‘openness’ of information and that this reform has only occurred because of donor pressure. Emerson was certain that when donors stopped funding reforms and pressuring the court to undertake reforms that these ‘reform’ programs would cease automatically.

This suggests that there is no real intent to reform within the court or judicial system, but rather talking reform is all about getting money through aid programs directed at law reform.

Judicial Reform in Indonesia

A recent survey by the Political and Economic Risk Consultancy Ltd (PERC) has ranked Indonesia as the worst of the 12 Asian countries surveyed. The survey by PERC suggests that the Indonesian judiciary is the weakest and perhaps most controversial of Indonesia’s institutions. This is in essence the crystallization of public opinion on the idea that law enforcement in Indonesia is the number one problem faced by the country. According to PERC some of the decisions made by the courts have been “so controversial that they have seriously hurt confidence of foreign companies”, however PERC did not provide any specific examples with regards to which cases it considered controversial or sapping of foreign confidence in the system.

PERC is a Hong Kong-based consultancy. The survey asked 1,537 corporate executives working in Asia to rate the judicial systems in the countries where they reside. The basic variables used included: the protection of intellectual property rights (IPR), corruption, transparency, enforcement of laws, freedom from political interference, and the experience and educational standards of lawyers and judges were also considered.

“Year after year, our perception surveys show close correlation between how expatriates rate judicial systems and how they rate openness of a particular economy,” PERC said. “Better judicial systems are associated with better IPR protection, lower corruption and wealthier economies.” explain PERC.

Interestingly, a survey by a Hong Kong-based consultancy has found that Hong Kong rates the best with a score of 1.45 on a scale 0-10. In this survey a score of 0 is the highest possible score and 10 is the worst possible score. Hong Kong was followed by Singapore (1.92), and then Japan (3.50). Indonesia ranked last with the lowest score of 8.26. Vietnam came in slightly higher than Indonesia with a score of 8.10 and China (7.25) was almost a point better than Vietnam.

The PERC survey would seem to confirm the results obtained in Transparency International Indonesia’s (TII) survey of December 2007. The TII survey also ranked Indonesia’s judiciary as one of the most corrupt institutions of State considered in the survey. The most corrupt in the TII survey were the police. Similarly, a recent survey by the Corruption Eradication Commission (KPK) also had the Indonesian Court system as the second most corrupt institution in the State. The only difference being that the KPK had the Office of the Public Prosecutor as the most corrupt.

Aria Suyudi, Executive Director of the Center for the Study of Law and Policy (PSHK), said of the TII survey, that the results reflect the public’s perception of the courts. Aria went on to explain that the perception is different perhaps from the reality because most of those surveyed were not familiar with the legal and judicial reforms going on at the Supreme Court. Therefore, there was also little surprise from Aria that the PERC survey also found the Indonesian judiciary to be wanting and the worst in Asia as the results seem to be based on questions relating to perception of the system rather than the reforms taking place. Simply, those surveyed, whether they be corporate executives or investors, are just not sufficiently well-informed of the reforms taking place in the judicial system, according to Aria.

Furthermore, Aria highlighted that the perception is an old one and fails to take into account the progress made by the court system as a whole and more specifically the Supreme Court. Aria cited the example of the Supreme Court decision database. The Supreme Court decision database is an online database of Supreme Court decisions that can be accessed by the public.

Hasril Hertanto, Secretary General of Masyarakat Pemantau Peradilan Indonesia (Indonesian Judicial Watch Society / MAPPI), had a similar opinion to that of Aria, and stated that the system in Indonesia is not the worst. It must be noted that Hasril acknowledged that the system was not excellent either but just OK. For Hasril it was not so much the system that is inadequate but rather the inadequacies lie with those who are tasked with running the system. According to Hasril it is the human resources that are not sufficiently prepared and as such do not have the capacity to run the judicial system. This lack of preparedness has meant that corruption has not been completely eradicated and as such the mistrust remains as do the negative perceptions of the system.