Ariel, Three & A Half Years, and an Appeal?

The sex-tape distribution case of Nazril "Ariel" Irham, or Peterporn as it had come to be known has reached a conclusion of sorts. Ariel has been sentenced to 3.5 years in the "big house" for his role in distributing a sex tape.

The evidence that was adduced in court and that which was played out in the court of public opinion must have been two very different animals. The reality is that what we know of this case in the public domain is more than enough to suggest that there is sufficient doubt as to whether Ariel had any role in distributing the two sex tapes of him to the public via the internet.

It is pretty obvious that what most people can agree on is that Ariel was the star of, and in, the sex tapes. Admittedly, most others would agree that his fellow cast members were pretty good too. I wonder whether there are any copies of "Ariel does Luna" and "Ariel does Cut Tari" doing the rounds of Glodok, Ratu Plaza or the lane ways of Blok M?

An appeal in this case seems destined to be run by a different set of lawyers. Luna Maya has engaged Taufik Basari to take over from OC Kaligis as her lawyer. Whether Ariel is going to follow suit remains to be seen, but the practice of lawyer shopping through an appeals process is nothing new. Basari is a good lawyer with a solid background with legal aid. But, I am gonna take a stab in the dark and say that he is probably not doing this one pro bono :)

The decision to sentence Ariel to 3.5 years and fine him IDR 250 million is justice gone awry There is simply no justice in sending a young man to prison for making a sex tape. I appreciate that different people have divergent moral views as to what is right and wrong with sex and pornography among consenting adults. However, despite those personal convictions, it seems hard to fathom exactly how the judges reached a conclusion that the prosecution had proved its case. Hopefully, a copy of the legal judgment that highlights the legal reasoning will be forthcoming in the public arena.

Nevertheless, there are those who feel that 3.5 years is insufficient. It goes without saying that the FPI and other hardline Muslim groups are still arguing for the death penalty. Yet, it is interesting to be able to lump the Indonesian Commission for the Protection of Children into the group that believes Ariel escaped with a sentence that was far too lenient. Maria Advianti of the KPAI argues that KPAI data highlights in the period after the Ariel sex tapes were released that there was a spike in child rape offenses by children on children as a result of having watched the Ariel sex tape. The data on that must be made publicly available and be subject to some scrutiny.

Interestingly, the sentence handed down to Redjoy or RJ was for 2.5 years. This is interesting because bothe were in essence accused of the same crime, distribution. Why is it that Ariel gets 3.5 years and RJ only 2.5? Is it that the judges are punishing Ariel more severely because his role in the distribution was bigger? Or is it that the courts and judges in this instance have decided that Ariel as a public figure has a higher level of guilt or responsibility to behave in a certain way because he is popular? And, therefore based on this he should be punished more severely in order to set an example to other celebrities? Or is it that the judges have punished him for making the sex tape in the first place because their collective conscience demands it?

As they say,"it is not over till it is over". I would suggest that this case still has legs and is likely to go a long time on appeal. Hopefully, the appeal courts will see some common sense and not fold in the face of forceful ultra-conservative religious voices from the public domain and affirm the sentence. Instead, it is hoped that the courts seek to apply the law in accordance with the relevant burdens required. The prosecutors must prove that Ariel was involved and evidence to date in the public domain has not met that burden.

A final point. So, where do the cases of Luna Maya and Cut Tari go from here? If the prosecutor was able to convince the court that Ariel's failure to prevent the distribution of the sex tapes was sufficient for a conviction that maintains Ariel was actively involved, then surely the prosecutors must be thinking that this decision gives their cases against Luna Maya and Cut Tari some additional legs.

It would be a rather spectacular fall from grace for Luna Maya and Cut Tari to end up in the big house (aka jail).

Syekh Puji: Sentenced to 4 Years for Pedophilia...

Pujiono Cahyo Widiyanto (aka Syekh Puji) has been sentenced to four years in prison for procuring a 12-year-old for a sexual relationship. Syekh Puji had been arguing that he had done nothing wrong in God's eyes nor under God's Laws as his 12-year-old bride had begun menstruating before he consummated the marriage.

Syekh Puji is a Muslim and believes that Islam permits his actions. The Syekh also believes that the laws of God are far superior to the laws of 'man'. Men do not have the right to punish him because he has not committed a crime in the eyes of God. The age of consent in Indonesia for females is 16-years-old. The law does not make any exceptions for early puberty or menstruation, or even parental consent.

Well, it would seem that despite his protestations to the counter, the judges of the courts of men (and women) in Semarang decided that the Syekh was in fact guilty of having sex with a minor, Lutfiana Ulfa. It goes without saying that Syekh Puji will appeal this decision. This was confirmed by O.C. Kaligis, the Syekh's lawyer. Kaligis is getting some varied and interesting work of late. Kaligis is also the lawyer for Ariel of Peterpan fame. Ariel is currently on trial in Bandung for his alleged role in the distribution of a couple of home-made sex tapes.

It will be interesting to see what the grounds for appeal are. The law is pretty explicit with respect to the age of consent. So, it is unclear at this point as to where the court may have erred in rendering its judgment.

Syekh Puji Goes To Trial...

Pujiono Cahyono Widianto who is also known as Syekh Puji (Syech Puji) has finally gone to trial for marrying a 12-year-old, Lutfiana Ulfa, back in Ausgust 2008. The trial is being held in Central Java at the Ungaran District Court. Puji has been charged and indicted under two articles; art. 88 of Law 2002 (Child Protection Law) and art. 290 of the Indonesian Criminal Code (KUHP).

Each of the articles carry a maximum term of imprisonment of ten years. Puji is not expected to receive the maximum sentence. Though it would be a worthy statement that there is no religious exception to the laws of marriage, the protection of children, or the committing of crimes. Nevertheless, there will always be those that argue the laws of man (for want of a gender neutral term) will always be trumped by the laws of God.

The trial is being held behind closed doors. There is some argument as to whether this is necessary because the identity of the perpetrator of the alleged crime and the victim have both been revealed publicly and their photos splashed across the world's media pages. Nevertheless, Indonesian law generally protects the identity of minors involved in criminal matters, both as victims and as perpetrators. I have a picture of them both, but have opted for the one above. Perhaps this is what he is paying OC Kaligis to represent him.

If I was ever going to practice law in Indonesia and I was keen to practice criminal law, then OC Kaligis would be one advocate that I would try and convince to employ me. He gets plenty of interesting work. That is not to say that I would be keen to defend Syekh Puji, but I am a firm believer that everyone is entitled to get the best possible representation available, irrespective of their ability to pay. Obviously, the Syekh can pay!

This case and trial might be a little difficult for me to follow from Sydney, but I will do my best.

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

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

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

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

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

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

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

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

Prita Mulyasari -- The Case Continues...

The Prita Mulyasari case is an interesting one. It is interesting for a number of reasons. First, among these, is the necessity for criminal defamation in Indonesia. Second, was this the right case to test the those criminal defamation provisions. Finally, did the Tangerang District Court err in the manner in which it dismissed the indictments which set Prita free?

I noted in an earlier post that the manner in which the indictments were dismissed left the prosecutors no alternative but to appeal. The reason is simple, the judgment sets a bad precedent. The idea that a law does not come into force until all of the subsidiary or implementing legislation is in place is clearly not the case in Indonesia. The judges in this case have erred in the application of the law.

Even more so when one considers that the article under which the indictment was issued does not require any subsidiary legislation to be effective. This really was a case of putting the cart before the horse. Ultimately, this undermines legal certainty rather than reinforcing it.

Funnily enough when confronted with the fact that the Tangerang Office of the Public Prosecutor were going to appeal this to the High Court in their pursuit of a conviction, Prita is alleged to have said the following, "Is it the prosecutors' personal problem?" I wonder!

Prita's lawyers from the firm of OC Kaligis have stated that if the High Court accepts the appeal, then this would set a bad precedent. I am not sure how it sets a bad precedent as each case is judged on its merits. If the judges believe their is merit in the appeal then that appeal must be granted leave for the appeal to be heard. Prita's lawyers went further to suggest that if the judges accepted the appeal then this is indicative of their arrogance.

In my mind, if the prosecutors did not appeal and the judges did not accept the appeal, then I would argue that both had erred in their duties to the larger community. It is unfortunate that Prita is going to end up as a pawn in this struggle. But, the reality is that the judges fell victim to public outcry and their legal reasoning for dismissing the case is not sound.

The judges would have been better to allow Prita's defense team to present their case and then agree with the submissions of the defense and then dismiss the case because the elements of defamation had neither been made out nor had the prosecution presented sufficient evidence in support of the indictment. And, finally, the defenses to the indictment were made out.

If the judges had done this then Prita would be a free woman and not worrying about an appeal.

I have made the arguments for and against the prosecutors pursuing this case in other posts and they do not need repeating here. If our interested follow the link.

Robin Tampoe -- One Time Corby Lawyer -- Struck Off

This is Schapelle Corby related news. However, the main subject of this little post is Robin Tampoe; a one-time lawyer for Schapelle Corby.

Robin Tampoe (photo courtesy of here) became involved in the Corby case very early on. He provided pretty bad advice, in my opinion, because his own ego required that he piggy back on this case in order to make a name for himself by using someone else's legal predicament to further his career. Unfortunately, or perhaps fortunately, this has backfired in a big way and has in fact ended his legal career as he has been struck off the role of legal practitioners.

The advice was indicative of someone not knowing the intricacies of the Indonesian legal system and also highlighted a substantial lack of understanding of the substantive law that applies in Indonesia. In this sense, the writing was on the wall for Corby as soon as Tampoe became involved. However, the advice is not the reason for his striking off, but rather his conduct as a lawyer and handling of client information.

It was certainly a Forrest Gump kind of a moment in the type "stupid is as stupid does". Simply, Tampoe came into possession of confidential information which he then divulged to the world on TV. This information related to prior criminal convictions among members of the family. After being dumped from the Corby legal team he then went on to add insult to injury by disparaging them in the documentary, "Schapelle Corby - The Hidden Truth", by calling the family "trash".

The Legal Services Commissioner initiated the action based on an allegation that Tampoe breached client confidentiality. In essence, he failed to uphold the lawyer - client privilege that certain communications are subject to. In a written judgment of Justice Roslyn Atkinson of the Queensland Legal Practice Tribunal, Tampoe was found guilty of professional misconduct. Atkinson then ordered that Tampoe be struck off the roll.

On a side note. It is interesting to see that in the current Manohara case two of Indonesia's senior lawyers, Todung Mulya Lubis and OC Kaligis, have left the legal teams of Prince Tengku Temenggong Mohammad Fakhry and Manohara Odelia Pinot respectively, and then gone on to make some disparaging remarks about their former clients relating to their respective intents to resolve that matter. I wonder, any ethics or professional misconduct issues there?