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!

Chandra M Hamzah and Bibit Samad Rianto -- Deponeering...

The President of the Republic of Indonesia, Susilo Bambang Yudhoyono or SBY, is not scheduled to respond to the Team of Eight report and their investigation and recommendations regarding the police and prosecutors case against Chandra M Hamzah and Bibit Samad Rianto until tonight. However, unwittingly or not, he has probably provided some insight into what his remarks are likely to be when he addressed the chief editors of 75 media organizations last night.

It is clear that the president feels that some of the issues that have arisen during the cause of these shenanigans have been nothing short of a personal affront to him and his family. Therefore, it is of little or no surprise that he wants this issue to go away, and go away fast. The longer it drags on the more damage it does to him and his legacy.

So, what did the president say exactly. Well, in a nutshell, he wants the issue resolved, and he wants it resolved out of court. His suggestion is that the police and the Office of the Attorney General use their deponeering (sometimes spelt deponering) to discontinue the investigation. Deponeering is a legacy of the Dutch colonial legal system and in its most simple terms means to discontinue any investigation in the public interest. In essence, the president is telling the police and the AGO to end this thing by just pulling up stumps and letting the issue die a fast but peaceful death.

Yet, it is worth noting that in his comments he seems to suggest that ultimately this is a call for the police and the AGO. If this is true, and he has not issued a direct order to the police and the AGO to deponeer this case, then it is a little bit disingenuous to suggest that he is becoming actively involved in the case. In fact, it is pretty clear that he is setting up the public for disappointment by saying that he will not be forced into overstepping his boundaries as president.

And, as far as he is concerned, if he was to order the police or the AGO to stop the investigation then he would be overstepping his authority and interfering in the proper domain of law enforcement. However, he had no qualms about involving himself by pushing through an interim law (perpu) to get three new commissioners appointed to the KPK. It would seem that the president is prepared to pick and choose how he exercises his authority in this case while hiding behind constitutional amendments that supposedly limit the president's authority in dealing with matters relevant and important to the development of democracy within the Republic of Indonesia.

The Team of Eight report also recommends that heads should role. So, it will be interesting to see whether in letting the police and the AGO decide whether he lets the Chief of Police and the Attorney General to continue to make a mockery of their respective institutions.

The idea that deponeering this case as an out-of-court settlement is fair is also a backhanded slap to the face of the KPK and to Chandra and Bibit specifically. This is particularly so if the deponeering does not result in a complete withdrawal of the charges and some degree of compensation for the damage the investigation has done to the reputations of Chandra and Bibit to date.

There would need to not only be a deponeering happening here, but a full and unequivocal apology to both the KPK commissioners for the harm done to them. Anything less would be a slap in the face. This would be particularly so considering that the Team of Eight report states that the police and the AGO do not have enough to sustain a charge of abuse of power or extortion.

So, it remains to be seen. What will the president do? Mr. President what will you do?

The KPK Perpu Has Been Signed...

The President has signed the Peraturan Pemerintah Pengganti Undang-Undang (Interim Law) into effect on Monday (21 September 2009). I have not yet received a copy of the Perpu, but have been in discussion about the content.

The Perpu adds two articles to Law No. 30 of 2002 on the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK), namely: Article 33A and 33B. These additional articles deal with the execution of duties of the commissioners of the KPK and provides the president the authority to nominate additional temporary commissioners to the KPK when there is a vacuum of leadership. Presumably, this provides requisite authority for whatever reason underscores the dismissal or suspension of commissioners from the KPK.

In this case, the Head of the KPK, Antasari Azhar, has been arrested and is to go on trial for his alleged involvement in the assassination of a Director of PT Putra Rajawali Banjaran, Nasrudin Zulkarnaen. Consequently, Antasari has been dismissed from his position. Furthermore, two other commissioners, Chandra M. Hamzah (I used to work for Chandra before he became a commissioner - just in case any disclosure is needed) and Bibit Samad Rianto, have been declared non-active as they have become suspects in an abuse of authority matter involving the issuance of travel bans (cekal) and their subsequent lifting of the bans against two corruption suspects, Anggoro Widjoyo and Djoko Tjandra.

A perpu in this case is not the right way to go. It sends the wrong message. By issuing a perpu the president is in effect stating that he agrees with the manner in which the police are going about this matter. He is also stating that it is legitimate for the police to criminalize actions that are explicitly within the administrative field. Even the Chief Justice of the Constitutional Court, Mahfud M.D., has stated that this is an administrative matter that would require the two individuals who feel that they have been victimized by the administrative actions of the KPK to file suit to seek compensation or damages for any loses sustained.

Issuing perpus in this context is a slippery slope that might come back to haunt the president when he is a former president.

Is A PERPU A Law?

There is current debate in the cyberworld over at Politikana as to the nature of a PERPU. A PERPU is Peraturan Pemerintah Pengganti Undang-Undang. This is translated as Government Regulation In Lieu of Law which is literally what it says. However, when I translate it I always use the term "Interim Law". The simple rationale here is that the regulation is put into place to act as a law and behaves as a law for a defined period of time.

This debate has come about as the President of the Republic of Indonesia, one Susilo Bambang Yudhoyono, has decided that the best way to deal with the current conflict between the police and the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK) is to issue a PERPU to replace the KPK commissioners that have become non-active as a result of being declared suspects in an investigation of alleged criminal activity (this will be the subject of another post).

Getting to the legal nitty gritty. The Law on Legislation Drafting (Law No. 10 of 2004 on Pembentukan Peraturan Perundang-undangan) in Article 7 lists the hierarchy of laws and regulations in Indonesia. This places a PERPU under the 1945 Constitution but on the levle of a law (undang-undang). This would seem to resolve any dispute about where the PERPU fits and the intent, or understanding of the Parliament, as to the function of a PERPU.

Nevertheless, a PERPU has really limited use. A PERPU can only be issued in a moment of crisis or emergency. Now, this is where it all becomes a little subjective and discretionary. It depends on who is making the decision as to whether something is an emergency or not. In any event, Article 25 of Law No. 10 of 2004 requires that a PERPU be submitted (normally in the form of a Bill) to the next sitting of parliament. At this point the DPR gets the opportunity to pass the Bill (former PERPU) into law or reject it. If the DPR rejects the bill or decides to bounce it around for a while then the PERPU by default expires and there is a return to the previous incarnation of the law.

It is debatable as to whether the current situation with the KPK is an emergency for the purposes of a PERPU. There are obviously those for and against the proposition. I am against it. I do not believe that the current situation warrants a PERPU in order to resolve the conflict. Appointing commissioners to the KPK through a PERPU runs counter to the idea of independence that the KPK is supposed to enjoy from political interference. It is clear that the KPK commissioners are some of the most vetted individuals to date in Indonesia. To then make them a presidential appointment begs the question, "who will prosper in a scenario of political / presidential appointments to a corruption eradication body?" The answer to that question might tell one why a PERPU is being touted as the best possible option.

A PERPU is by default a law, but a law of restricted use and of limited value.

At least in my humble opinion. So, as "Big" John McCarthy used to say in UFC, "Let's get it on!"