Mano, Oh Mano...

It seems that one can never get enough of Manohara. Well, it would seem that this is what her handlers think. Mano and her handlers are certainly courting the media at every opportunity, and getting her involved in all manner of things. The latest venture is a request to the Indonesian Constitutional Court for a judicial review of the interim law (Peraturan Pemerintah Pengganti Undang-Undang / Perpu) that authorized the Bank Century bailout.

This is not to say that the Bank Century bailout is not worthy of a judicial review of the Constitutional Court. The scandal, and it is a scandal, is probably worthy of some deeper investigation and maybe even warrants some criminal charges down the track. However, Mano's constitutional rights to claim the judicial review are the same as myriad of other Indonesians, and the cynical among us would consider this to be nothing more than opportunism with respect to getting her name in the papers and on TV.

I have not seen anything nor read anything that Manohara has said or written that would suggest that she has the capacity to understand the legal intricacies of a Constitutional Court challenge. So, perhaps it is time that she enlightened us in her own words on why it is necessary to bring such a challenge and discuss and explain a little the legal issues she is seeking to resolve at the Constitutional Court.

Her lawyers, including Farhat Abbas, have suggested that the case is a reflection of her commitment to ridding Indonesia of corruption, and of concerns she has as a good citizen of Indonesia that her tax money has gone to bailing out corruptors, and that the perpu is nothing more than legal protection for those involved. As I said, I would like to hear her articulate these things in her own words.

While she is doing that, she might also like to articulate on the case involving her mother and the alleged abuse of a domestic servant in France for which Daisy Fajarina, her mother, was convicted of and sentenced to 18 months in jail in absentia. Of particular interest would be why her mother has not returned to France to either contest the matter on appeal or to serve here sentence like a good citizen.

Meanwhile, I guess we will be hearing only from the lawyers and the media representatives, with a few sound bites tossed in for effect.

Oh well!

Prita Mulyasari -- Judicial Review of the Banten High Court...

I like OC Kaligis. He is a passionate about lawyering and he has contributed lots to Indonesia's ever-expanding mooting community, which is something I am passionate about as well. However, the desire to seek judicial review of the Banten High Court decision that orders the Tangerang District Court to retry the Prita Mulyasari defamation case is a case of barking up the wrong tree.

To be clear, I do not think that this case should have been heard in the first place, civil or criminal, however now that it has, it is an excellent test case and the team from OC Kaligis' law offices would be better to focus on the manner in which they could conceivably contribute to setting an Indonesian legal precedent. Yes, Indonesia is a civil law country and precedents do not play a big part, I have heard it all before. In a civil law country like Indonesia that is trying to forge a strong reliance on the rule of law means that a precedent like the one that is possible in this case would be a significant achievement, particularly for legal and legislation certainty.

The OC Kaligis team in pursuit of "justice" is going to lodge a brief at the Supreme Court to have the Banten High Court's decision judicially reviewed. A very basic and general analysis of Indonesian law would require that the Banten High Court decision include an error in application of the prevailing laws and regulations or there is new evidence that would render the verdict unsustainable if the court had had access to that evidence at the time the decision was made.

The decision of the Banten High Court appears to be on solid legal grounds. It does not appear to have erred in the application of prevailing laws and regulations with regards to the decision handed-down. Without having read the brief, it is hard to see what new evidence might have come to hand that would render the verdict unsustainable. Although, one of the lawyers from the Kaligis team suggested that he hoped the Banten High Court decision was not influenced by factors other than the prevailing facts in the case. So, maybe the infamous court mafia weaved its considerable magic?

Nevertheless, OC Kaligis is doing his job by seeking a judicial review. This is in the sense that a lawyer must explore every possible avenue that is available to their client in the pursuit of not only justice, but to prove their client's innocence. In any event, the Supreme Court has a history of interesting decisions that overturn lower court decisions. So, an appeal to the Supreme Court could be a winner for Kaligis and his team if the are holding the "right" ticket in the lottery.

I have always argued that the best possible outcome for Prita would be to prove that the defamation did not occur. Or, if it did that there are defenses available, specifically that what was contained into the letter to friends that found its way onto several mailing lists was factually correct. Simply, you cannot defame someone or an institution with the truth. The truth is as it is, truth!

You know there will be more on this as it comes to hand.

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)

Bali Bombers -- More Appeals

It is a great and perhaps bitter irony that the Indonesian courts continue to entertain the endless appeals that these self-confessed criminals lodge or have lodged on their behalf. If they truly were keen to become martyrs to the cause then they would not have too much riding on the method of their execution.

The latest appeal seeks to have the manner of execution changed from a firing squad to a beheading as this is less cruel. The lawyers for Amrozi, Imam Samudra, and Mukhlas have challenged the firing squad as being an inhumane method of execution. These three terrorists did not give much thought to the humanity in the manner of their execution of 200 plus innocent civilians. So, this begs the question, "why are the courts continuing to entertain these appeals and why doesn't Indonesia just get on with the show and execute these felons?"

If they want to be beheaded then so be it. I would think that there would be plenty of people lining up to take responsibility for swinging what would hopefully be a blunt sword.

I have written on this many times before, but it never ceases to amaze me that the judicial process when it comes to these three is bending over backwards to accommodate their every whim. Yet, the Poso Three were never afforded such appeal opportunities. I wonder if a Christian death row inmate could get their lawyer to lodge an appeal saying that the firing squad was unconstitutional and inhumane and that a crucifixion would be a more religiously acceptable means of execution?

For the victims and their families -- the process is long and drawn out but judgment day is nigh for these mass murders. Patience is a virtue. The Constitutional Court will not uphold the appeal. Yet, even if it was to do so it only changes the method of execution and not whether the execution takes place. It might delay it a little while as the State will need to train up a swords person for the task.

Bali Bombers - An Update

It would appear that the Bali Bombers are not as keen on martyrdom as they have suggested they are or they have failed to convince their lawyers and family to let the law take its course by refusing to have a second judicial review application filed on their behalf.

The Indonesian Supreme Court in its infinite wisdom has decided to accept a second judicial review application from the three Bali Bombers; Amrozi, Imam Samudra, and Ali Ghufron. The second judicial review appears to be premised on the retroactivity of the terrorism law. Criminal laws simply cannot be applied retroactively in Indonesia.

However, this ground of appeal has been attempted before and based on the Constitutional Court decision on whether the terrorism law could be applied retroactively the Court held that it could not. However, in a rather large blow to the applicants the Court went further to say that the law was only invalid from the date of the Constitutional Court decision. Therefore, the convictions stand.

The legal reasoning is flimsy in that when a law is found to be constitutionally invalid then it is invalid from the date of enactment of the law. However, creative decision and law-making here meant that convictions under constitutionally invalid laws would stand. The Constitutional Court has since gone on to make other equally bizarre decisions such as post-dating the invalidity of a law to a date three years into the future (see earlier posts on this craziness).

I am not a supporter of the death penalty and would rather see these cold-blooded murders rot in jail. Unfortunately, any prisoner exchange deal between Australia and Indonesia would not allow for the Bali Bombers to serve their time in an Australian prison. I wonder how long they would last in the general prison population at one of Australia's premier prisons like Silverwater of Goulburn. This is even with the reported explosion in the numbers of prison converts to Islam in Australian prisons.

So, this decision to accept the appeal will delay the inevitable. The Constitutional Court has determined the validity of the provisions of the terrorism law to this case. Even a Supreme Court looking to exert its independence and re-establish its authority as Indonesia's premier court is unlikely to rule in favor of the application. But if it did take the lid of this Pandora's box it would be a case of let the fun & games begin!

Soeharto + Generosity

Soeharto has always been pegged as a very generous man if you happened to be the right person, in the right place, and at the right time...there are numerous media reports of his alleged cronies becoming obscenely wealthy. Thankfully, some have done prison time.

Although it seems like the old man himself is likely to escape prison time through a combination of advancing age (the old fella will die sooner or later) and declining capacity (although some would argue that his capacity has not diminished and this is just another part of a deceitful plan). Strangely, enough he was not too senile to instruct his lawyers to commence a defamation action against Time Magazine. It is unfortunate that the allegations against the old fella will never be fully tested anywhere other than the court of public opinion!

I have written on this in a previous post. The function here is merely to update that post. The earlier judgment awarded the former dictator USD 109 million (with interest it is already up to USD 111+ apparently).

The lawyers for Time, led by Todung Mulya Lubis, are in the process of finalizing what is said to be a more than 100 page brief to the Supreme Court as part of the judicial review process of the earlier Supreme Court decision. In spite of the drama of the language being used to highlight this case, a fight between good and evil, the reality is the judicial review has the potential to impact upon the prevailing definition of 'freedom of the press' in Indonesia, particularly whether the press is free at all!

The importance of this judicial review case will be to determine whether Time complied with acceptable journalistic ethics and principles in publishing the report that it did. If the Supreme Court decides that Time did in fact comply with prevailing journalistic standards, then the decision must be overturned.

The case is to come before a judicial review panel of the Supreme Court sometime this month. What is the likely outcome? Who knows! Much will depend on who here's the case and the expertise that they bring to decision making process. Defamation is not an overly complex field but it is a little more complex than deciding that a negative article based on verifiable sources defames the subject of that article.

Generosity...if the judicial review process affirms the earlier Supreme Court decision then the old fella has stated that 65% of the damages award will be provided to the poor and the remaining 35% to the State. Seeing is believing! Also it would be interesting to see how much of a cut his lawyers are taking for their services, particularly whether it is a 'capped rate', an 'hourly rate', or a 'success fee'.

Constitutional Court and the KPK

Yesterday, the Constitutional Court handed-down its decision in an application for judicial review of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK) and not surprisingly the decision rejected the application. The question before the Court was whether or not the provisions of Article 29(d) of the KPK Law was in breach of the non-discrimination provisions contained in Articles 28D(3), 28H(2), 28I(5), and 28J(1) of the 1945 Constitution.

Article 29(d) stipulates that the leadership of the KPK must have an undergraduate law degree or some other degree and at least 15 years experience and expertise in either the fields of law, the economy, finance, or banking. On face value these conditions would be discriminatory against those who do not possess either degree or experience. However, the Court after hearing (in reality this was read as it was written) the testimony of the House of Representatives (DPR) the Court held that conditions such as these did not represent discrimination but were in fact reasonable objective measures to determine the ability and capability of prospective candidates for KPK leadership positions.

To get to this point the Court relied on the Human Rights Law (Law No. 39 of 1999) which defines discrimination in terms of religion, ethnicity, race, grouping, social and economic status, sex, language, or political affiliation. Nevertheless, a creative advocate might be able to make sustainable arguments that social and economic status effects one's ability to gain an education and therefore this would serve to discriminate against them in later opportunities.

The simple reality is that corruption is not always simply being paid of or receiving a 'bonus' for your illicit assistance in gaining an advantage. Sometimes corruption involves myriad complex financial transactions as the perpetrators seek to cover-up their illegal deeds. This in turn means that not all people possess the necessary qualifications, experience, or skills to do the job at hand. Generally, the little people's concerns about the KPK relate more to the commitment of the leadership to eradicate corruption than the qualifications that the leadership holds. Most people want to see corruption reduced and where it still occurs be severely punished and if this means that people have to hold a degree and 15 years experience to qualify, then so be it.

Actions speak louder than words (well, I am sure I read that somewhere). So, perhaps if we all took a little responsibility ourselves in this regard and said no to corruption in spite of the personal inconvenience that this might cause us, then we would all be just that little bit closer to reducing corruption

Enough of the Soap Box for today...