Schapelle Corby To Be Released?

I have not written on Ms. Corby's case or the "suffering" she is 'enduring' in Kerobokan prison on the holiday paradise island of Bali in my second home of Indonesia. There is no reason for this other than there not being anything newsworthy or of note to write about until now.

The latest news is a push seemingly by Corby's Indonesian lawyer, Iskandar Nawing, presumably on the insistence of the Corby family. The reality is that the Indonesian president, Susilo Bambang Yudhoyono or SBY to his mates, has had the clemency appeal since July 2010 and has yet to act on it. I suppose I could speculate as to why that is, but I won't for now. I will wait and see what comments, if any, get made to this post.

There has been no official statement from the Indonesian Supreme Court, at least as far as I recall (note to self: go back and check through files), that says exactly what the Supreme Court recommendation was. But, most pundits believe that the recommendation was for a sentence cut of 10 years on the original 20-year sentence. Under Indonesian law a prisoner becomes eligible for parole after having served 2/3 of their sentence. Corby has been in jail for about 6.5 years and as such she would be getting close to making an application for release.

Parole, like anywhere else, can be complicated by a number of issues. As such the application for release would be assessed against a whole range of criteria including not only the prisoners behaviour during their incarceration, but also what is in the best interest of the prisoner and their state of health.

It would seem that Nawing's push is a clear attempt to get some resolution on the clemency appeal by trying to force SBY's hand. However, it is interesting that no one is talking about why SBY has not signed off on the recommendation.

People Smuggling: Indonesians Jailed in Australia...

People smuggling is a crime, perhaps a heinous crime. It is one that does not pay, particularly if you get caught in Australian waters. Australia has pretty serious consequences for those that are caught and successfully prosecuted. The minimum mandatory sentence for those convicted of people smuggling is five years. However, non-parole periods can be set, and this seems to be in the range of three years.

Four Indonesians have learned the seriousness of the consequences the hard way and have been sentenced to five years in prison. The Queensland Supreme Court in Brisbane has found the men were responsible for the trips of two boatloads of Afghanis, Kurds and Iranians to Australia. But, the court was clear that the men were not the orgainsers of the trips, rather they were recruited by others to do their dirty work.

Each of the passengers paid somewhere between AUD 5000 and AUD 15000 for their passage. The Indonesians, Ferry Irawan and Sali were caught off the Ashmore Reef and Anton Tambunan and Joko Sampurno were caught off Christmas Island on two separate boats. The Indonesians were paid about IDR 5 million for the voyages.

There are some 70 others awaiting their turn to make their way through the Australian court system for people smuggling offenses. So, it would seem that there will be plenty of others looking at the five-year minimum mandatory sentence.

The question that arises from all this is are minimum mandatory sentences enough to thwart people smugglers and stop the crime? Probably not. Let's face it, when there is an offer of 3, 4, 5 or 50 times what you would normally earn in a month, then it is fair to say that there will be plenty of poor and illiterate Indonesian fisherman that will not think twice about looking a "gift horse" in the mouth. Perhaps the answer is not the poor fisherman getting caught. Perhaps the answer is to work harder at identifying and arresting the core organisers of these people smuggling operations.

Then again, perhaps the answer is getting those countries were the people being smuggled transit to Australia to take the crime seriously enough to draft and enact legislation that puts in place significant penalties that are likely to deter individuals from becoming involved in people smuggling operations.

Hmmm...

Gun Violence: Enough of a Reason to Restrict Gun Ownership?

The Constitution of the United States of America provides in the Second Amendment the right of her citizens to "keep and bear arms". The US Supreme Court has addressed the issue a number of times and has affirmed that the right extends beyond guns being kept solely for use in a militia (see District of Columbia v. Heller). I do not claim to be a US constitutional law expert, or even a constitutional law expert.

What follows is commentary in light of the recent shooting deaths of six people in Tuscon Arizona recently. The attack occurred at a "meet & greet" the constituents event being held by Rep. Gabrielle Giffords.

I am anti-guns. I do not see the use of them. I have fired the odd gun in the past, but it is just not my thing. I do not enjoy guns. I know many people who do enjoy guns and who make a good case for owning one or two or more. I am not anti-guns in the sense of law enforcement having them. Perhaps I am anti-guns in terms of how easy they are to acquire and how devastating they can be when used for illegal purposes.

I cannot imagine that the founding fathers or the early political masters of the US had in mind the sort of gun violence that afflicts the US now. I am almost certain that the founding fathers did not envisage that the right to own guns would become a right to wreak havoc, despair and death on innocents; men, women and children.

My condolences to the families of those who lost loved ones in this tragedy: U.S. District Judge John Roll, 63; Christina Greene, 9; Giffords aide Gabe Zimmerman, 30; Dorothy Morris, 76; Dorwin Stoddard, 76; and Phyllis Scheck, 79.U.S. District Judge John Roll, 63; Christina Greene, 9; Giffords aide Gabe Zimmerman, 30; Dorothy Morris, 76; Dorwin Stoddard, 76; and Phyllis Scheck, 79. I also offer my best wishes for a speedy and full recovery to all those who were injured in this instance of madness and senseless violence.

I have been reading with interest that there are connections being made to the "vitriol" and over-the-top rhetoric, which includes references to gun violence, in the political debate. In my mind this is an associated, but secondary issue. The focus must remain on guns and the ease of access to them.

I wonder if there would be a significant drop in gun-related violence if the rules governing gun ownership were further tightened to a degree that they became incredibly onerous? Or, would this just serve to promote a black market for weapons allowing gun violence to persist?

I would be happy to live in a world without guns. Yet, I am a realist. If we did not have guns then we would kill ourselves with whatever weapons were available. yet, it would probably take a lot longer to kill six people with a bow and arrow in comparison to getting off 20 rounds from an automatic handgun.

Hopefully, this tragedy will spur some debate about guns and gun ownership that will generate a whole lot of bipartisan support that will ultimately see the rules tightened even further. Maybe, it is time that politicians and others stopped trying to hide behind some universal and blanket right allegedly secured by the founding fathers and had a little bit of a think about what the founding fathers were really concerned about when it came to the right to keep and bear arms.

Ladies and gentlemen of the jury, I submit that the founding fathers and the early political statesmen of the Republic did not have the attempted murder of Congresswoman Gabrielle Giffords in mind when confirming the Second Amendment as part of a "Bill of Rights".

"Ill Disciplined" Lawyers?: Australian Examples...

Can lawyers "inadvertently" overcharge their clients? Lawyers in Australia have very explicit obligations when dealing with client money. There are also supposedly very explicit "rules" regarding how much clients can be reasonably billed and charged for legal work performed in the pursuit of justice or a claim. The biggest of these cases of recent infamy has been related to the work of Keddies Lawyers in Sydney. However, the issue is one that extends way beyond a solitary law firm.

Richard Ackland has written an excellent piece on this phenomenon, and I use the same examples here (with my own spin attached).

For example, a case involving the survivors of the Voyager disaster saw one victim receive a payout of just AUD 72,000. This seems fair enough until one learns that the government actually forked over an amount of AUD 412,000 to settle the claim. Yes, AUD 340,000 was eaten up in lawyers fees and disbursements. My math is not all that good, but by my reckoning the victim received just 17.5% of the compensation paid after fees and expenses.

An investigation of the fees billed and charged to the victim / client in this case found that the victim had been charged twice for the same work, that discounts provided from barristers for work on the case were not passed on, that this client was billed for work that was also billed to other clients, and that "work" on the case saw more than 24 hours billed in one day!

According to the Victorian Supreme Court this was not deliberate, but rather the consequence of a lack of attention to detail by the lawyer involved. Therefore, the inadvertent lack of attention to detail is just one of those things that happens? Doesn't the community expect that lawyers must be held to a higher duty of care when dealing with trust monies in their client accounts? And, isn't this expectation a reasonable one? The excuse that there was an inadvertent lack of attention to detail is akin to "But, Your Honour, I was drunk so I though her 'no' was really a 'yes'!" Perhaps an even more pressing question is "Your Honour, if the inadvertence is continual, then is this not a pattern that suggests there is an underlying intent to steal from client trust monies?"

Yet, the cases to date on lawyers over-charging their clients and mishandling client trust monies reads like a script of "how to protect your own". The NSW Court of Appeal found in a case against Leon Nikolaidis that the overcharging could not have been deliberate because his secretary sent out the letter of account. How convenient is that excuse? Seriously, if the lawyer signed off on that letter of account then the presumption must be that the lawyer read the letter and is therefore responsible and accountable for the content of the letter, right? Anyone else that signs a letter voluntarily yet fails to read its content would be held responsible for what that letter contains.

Why should it be different for lawyers?

"Crush Videos" -- Banned in the US...

The "Internet!" The mention of one word, "internet", can inspire such varied and passionate reactions in people. These reactions stream along a curve from the positive to the negative. The internet is a wonderful resource. Yet, it is also a place where there is much to be found that highlights the darkness and depravity that makes some of us tick. Crush videos are one of those things that hide out in the deepest and darkest recesses of our existence.

The US Senate voted unanimously to ban the creation, sale and distribution of crush videos. For some of you, this might be the first time you have ever heard of the term crush videos. You are also wondering "what the hell is he talking about?" A crush video, to all of you reading this who have lived very sheltered and protected lives, are sexual fetish films in which small animals are maimed and killed. It is probably worth noting that the law does not cover "cruelty" to small animals that fall victim to hunters or who might suffer in the care of veterinarians.

If you are anything like me, then you are having a hard time getting your head around the idea that there is anything sexual in the maiming and killing of small animals. Then again, I have always wondered what it is that makes a seemingly super-ordinary person a serial killer? For me, the what makes them "tick" aspect of it all.

I really do not have any problem with parliament getting involved in this way. I have absolutely no problem with crush videos being banned. I do not see the banning of these sorts of videos as an impingement on the freedom of speech of those who make them or those who want to watch them. I would reckon that in this day and age of modern technology there would have to be a way to satisfy this sexual fetish 'virtually'.

Yet, come to think of it, it would not take a whole lot to ban virtual sexual fetishes either. The law as it was passed seems to provide a free pass to virtual content as the wording goes something like this: "actual conduct in which one or more living animal is intentionally crushed, burned, drowned, suffocated, or impaled in a manner that would violate a criminal prohibition on cruelty to animals".

Digressing a little, has a crime been committed against a person, a child, in a virtual child porn, operation? I have been watching too much "Law & Order: SVU" of late.

Back on track, and back to the internet. The internet is a vast resource if you know how to look for certain things or if you are looking for specific content. To be honest, I have not ever looked for crush videos. To be equally honest, I have not studied sexual fetishes that closely to know that there was even a sexual fetish that involved cruelty to animals.

Nevertheless, the truth of the matter, these videos have traditionally been distributed for free utilising file-sharing peer-to-peer networks. The internet and ever-improving connection speeds have ensured that the ability to disseminate and distribute content has become much easier.

As context to why the US Senate had to pass a law on this sort of material arises from a US Supreme Court decision from this past April that declared an earlier 1999 law that criminalised videos that showed abuse and cruelty to animals to be unconstitutional. The 'unconstitutional-ness" of the 1999 law stems from the fact that SCOTUS held that the original law was too broad and therefore a violation of people's First Amendment rights to free speech.

Free speech vs. the right to life of some small defenseless creatures...hmmm, consider the animals for a moment and let's stop the crush!

Sexting...

The internet is a wonderful knowledge tool. The internet is also a place where harm and the potential of harm is ever present. Technology such as mobile phones are also excellent pieces of equipment that allow us to access and share knowledge. Modern mobile phones and instant sound and image communication devices that not only make us more productive, but have the potential to get us into serious trouble.

This is one such case on the serious trouble front.

Sexting is a serious problem. It is a serious problem because of the immediate harm it can do to those involved. It is a serious problem because after the immediate harm there is ongoing and long term harm that must be endured by those involved. Mobile phones link so easily into the internet now days that an image sent from one phone to another can be quickly uploaded to the internet. People need to realise that once an image is online, it is almost impossible for it to 'disappear'. What goes online, stays online...forever!

So, if you send or post a naked picture of yourself, then make sure it is something you will be happy to see when it comes back to haunt you in the future.

Now, that takes care of the sermon angle.

Onto the news.

A young man, Damien Eades, thought he had avoided any serious consequences from his part in soliciting a 13-year-old to post him naked images of herself. For Eades this might have been a little presumptuous. He is now set down to be the first Australian to stand trial in a sexting case.

In March of 2008, an 18-year-old Eades was employed at KFC. He sent the picture to a 13-year-old girl with the message "you like?" Aside from the fact that he is 18 and she is 13, what happens at KFC that employees have time to take off their shirts and pose for a few photos and then start sending them off to people? What ever happened to preparing and cooking chicken?

Anyways, after establishing that the 13-year-old "liked" what she saw, Eades for some reason thought it would be a good idea if she returned the favour, but by sending a shot of her 'bottom half'. The girl agreed and ended up sending a full-frontal nude shot of herself to Eades.

The story might have ended there, except for a rather vigilant father who thought it necessary to check out his daughter's phone. When Dad discovered the messages, it was on the phone to the police.

The case originally went to the Penrith Local Court and was dismissed. It would seem that the magistrate did not think that the charges against Eades, incitement of a person under 16 to commit an act of indecency and possession of child pornography, were worth pursuing at trial.

However, the Director of Public Prosecution was far from satisfied with that outcome and decided to appeal. The appeal was heard by Justice Greg James of the Supreme Court. Justice James agreed with the Director and sent the case back to the local court for trial. According to Justice James, the sexual content of the electronic transaction warranted a trial.


Eades might not be so lucky the second time around.

More on the SBY Trip to Holland That Wasn't...

Well, it is hardly surprising that the spin would come. The need to explain and justify why the Indonesian President pulled the plug on a state visit to The Netherlands just minutes before a scheduled departure from Halim Perdanakusuma airport in East Jakarta was paramount in trying to salvage some respect for the president.

It is not surprising either that the old ways have come to the fore again; make this an issue of national pride and paint the other side as unethical and morally corrupt. Paranoia?

It would seem that the president's biggest beef about what transpired is that any decision by a Dutch court to hear any case against him is a breach of the bilateral relationship. Mr. President, are you serious? Maybe, you need to get some new advisors on what constitutes a breach of the bilateral relationship. While you are at it, sir, you should get some new legal advisors (preferably at least one with some significant current international legal experience). Then, you might reconsider who you have on the ground in Holland doing the diplomatic bilateral leg work for these visits.

The cancellation of the State visit does not have anything to do with national pride. It has to do with petty ego and the knee-jerk reactions of a president who is more often than not indecisive on all things of importance and more prone to acts of petulance than decisive leadership. The thing that most dented national pride here was the decision to play scared of the RMS petition and presume that the Dutch courts would entertain the petition.

The funniest part of the spin put on this by SBY is the claim that the Dutch courts were in some way unethical in agreeing to look at the petition on the day of his proposed visit. If one is speaking of unethical courts and a legal system in need of significant reform, then he probably has a point. The president should in fact stay at home and fix the problems in his own backyard. After all, the president now seems to be all about sending the "right" messages. So, Mr. President, start sending those right messages.

But even funnier still is that he has set himself a precedent that all but ensures that any individual or group that feels the need to force the president's hand need only lodge a petition in a court of law. The president, in order to maintain consistency, would be left with no choice but to jump up and down claiming unethical breaches of bilateral relations and cancel his trip.

I wonder if the Free Papua Movement in Australia has considered this option? The next time there is even distant chatter that the president might be planning a trip to Australia the FPM should start planning a petition and lodge it about 48 hours before the State visit is scheduled to start.

Ultimately, Mr. President, human rights violations are serious breaches of international law. Sir, there are ethical considerations, moral considerations, in fact, there are human considerations to be had here. The reality Mr. President is that the Dutch courts function pretty well in comparison to your own. Let's face it, the chances of you being arrested and prosecuted for crimes against humanity, including torture, are pretty remote if you have not committed any crimes. To be sure, this would be true for any crime.

But, let's look a little closer to home - a case with no merit can go all the way to the Supreme Court and be reinstated despite public knowledge that the whole case is a fabrication designed to undermine the anti-corruption agency (KPK).

Hold on a minute, Mr. President, wasn't your election platform centered on anti-corruption and the desire to clean up government? Then how does one in your position sit idly by why corrupt powerful interests seek to dismantle the one institution that is likely to drive your post-presidential legacy? Now, what sort of message are you sending Sir?

Ho hum...

Prita Mulyasari and "That" Defamation Judgment...

There is one thing you can say about Indonesia, justice is a slow process through the courts. On the other hand, unchecked vigilante justice ensures the swift conclusion to almost any dispute! However, that old adage, which I am sure is too cliche now, "justice prevails", has proven true yet again.

Unfortunately, Prita Mulyasari had to wait a long time for justice to be recognised. Good for her, but one must not forget the very many Indonesians whose cases do not attract the same amount of public attention; they continue to languish in the system and without any light to be seen at the end of their nightmarish legal tunnels.

For Prita, her case should never have gone to the courts in the first place. It should not have gone to the courts for the simple reason that there was no case to answer, either criminal or civil. The case does highlight how over-zealous prosecutors can get it wrong, particularly when the ominous specter of case brokers and court mafia appear. That, and perhaps, a suggestion that the "victim" figured any up front case facilitation fees they might have to pay to get this thing off and running would be recouped several times over in any judgment that was awarded to them

The civil suit saw damages awarded to Omni International Hospital to the tune of IDR 204 million. The international here does not seem to relate to the level of service they provide, but more to the scale ..., nah, pet's not go there, I would not want to get sued for defamation or anything!

So, the Supreme Court in its infinite wisdom decided to toss the civil judgment against Prita. Tossing the case means the fine is expunged along with any need to make a public apology in a local rag in Jakarta. Nevertheless, the Supreme Court's decision to toss the civil suit ends only the civil action. The reality is that there is still a pending criminal appeal on which the Supreme Court is to decide (at least as I understand it). Prita's lawyers are bandying around the idea that it is unlikely the Supreme Court will toss the civil case and affirm the criminal case.

On face value, I would agree. But, it is the Supreme Court of Indonesia, the last bastion in many cases of hard-to-explain decisions. Let's face it, the last 48 hours has seen them reignite the KPK war by issuing a ruling that says the case against Bibit and Chandra must continue. It is fair to say the last 48 hours has been a real mixed bag at the Supreme Court.

Once the Supreme Court hands down the decision on the criminal appeal I might be able to close this sorry saga in a blogging sense.

Supreme Court, Gender, and Backlogs -- Indonesia

There was an interesting article in The Jakarta Globe that suggests that a recent appointment to the Indonesian Supreme Court can thank her gender for her appointment.

Sri Murwahyuni who previously sat on the Surabaya District Court has successfully negotiated the fit and proper testing procedures conducted by the House of [not so] Representatives to take her place as the 51st member of the Supreme Court bench. Yes, you read right, 51 members of the bench.

The other appointment was Sofyan Sitompul. Unfortunately, it would seem his gender was not of any assistance as he only just scraped through with 29 out of 57 votes of Commission III on legal affairs.

There are now six women on the 51 member Supreme Court bench. Not truly representative in a population sense, but certainly a move in the right direction.

However, I would be somewhat concerned that the perception is being allowed to develop that she was appointed based on her gender rather than her qualifications and skills, and more specifically what she brings to the Supreme Court as one of its newest members. This perception has developed and will continue to develop if legislators and other commentators do not re-orient their sound bites.

Let's face it,when the Head of the Commission suggests that gender played a role and was an advantage this immediately detracts from the appointee. This is plain and simple sad. This is even more so when the following sentence runs along the lines of "Oh, and she was also qualified too!" But, to add insult to injury, Benny K Harman, the Head of the Commission went one step further to reinforce a stereotype about women being more emotional than men and relying on unknown and unquantifiable other skills.

In this case, Harman said that "A female judge can use her intuition more than a man can and this is what the people want." Huh? What the people want, Benny, is consistency and equitable application of the law. The people want fairness. The people want to know that when they enter the legal system in pursuit of justice that they have every opportunity to find it.

Sad, Benny, sad!

But on a slightly different note. Ruhut Sitompul, no relation to the candidate, stated that there was no corruption in the process because he had never met Sofyan before the vote. I have to say, Ruhut, this hardly engenders any confidence in the process. So, if you had met him before then you might have been open to some good old-fashioned horse trading? But, this is about par for the course for Ruhut in pursuit of getting his head on TV. After all, it was not all that long ago he was seeking support for an idea to amend the constitution to allow SBY to seek a third presidential term for no other reason than all prospective candidates were lousy (in his view).

Sad, Ruhut, sad!

On a completely different note. There are now 51 members on the bench of the Supreme Court. There really should be no delay in seeking justice at the Supreme Court. There should not be any backlog of cases. A country of a similar population size, the USA, has a Supreme Court bench of just nine justices. They seem to manage their workload pretty well in comparison.

Ho hum...

Is Tommy Soeharto a Murderer?

Tommy Soeharto (aka Hutomo Mandala Putra) has decided that he needs to sue an Indonesian magazine for printing a phrase that in essence says, "Tommy Soeharto is a convicted murderer". The magazine, Garuda",  published the alleged offending phrase in December 2009.

The problem as Tommy sees it is that the article was about his business interests in a resort in Bali, and therefore there is no correlation with any previous actions of his. I thought that "Garuda" was the in-flight magazine that you get when you fly with Garuda.

It would seem that Tommy and his legal representatives have forgotten that he is in fact a convicted murderer. He did ten years for the premeditated assassination of a Supreme Court judge. This, if I am not mistaken, is a fact of life; a fact of Tommy Soeharto's life that he cannot escape.

Nevertheless, Tommy seems to think that he deserves a public apology, and that the apology should be published in a national newspaper. Perhaps at the same time he can instruct his lawyers to place a public apology in the same paper noting his remorse over his criminal activities, including an apology to the family of the judge, Syafiuddin Kartasasmita, who he ordered murdered for having the courage to sentence Tommy Soeharto to prison for breaking the law; graft I believe. If not, then Tommy should take his lawsuit and shove it where the sun don't shine. As a matter of fact he should just take his frivolous little suit and shove it where the sun don't shine.

To be perfectly honest, the title of murderer should, and must, follow Tommy wherever he goes.

The original news on this one comes from Detik (in Indonesian).

Islamic Defenders' Front & Playboy...

The Islamic Defenders' Front (FPI) has an uncanny knack for knowing how to garner a headline and, most would argue, ridicule.

For some reason, the Supreme Court has decided that Erwin Arnada, the former Editor of Playboy Magazine Indonesia, needs to do two years in prison for violating Indonesian decency laws. This begs the question, "have you ever taken a sneak peek at Indonesian Playboy?" If you have, then you will know that it is the only edition of Playboy Magazine that you really do buy for the articles. The pictorials were so tame that the magazine did not need to be sealed in a plastic bag nor did it need like a "R" or even an "M" rating.

There are clearly more tabloids and magazines being sold on street corners throughout Indonesia today that are more graphic and show more skin than playboy ever did. Yet, that said, for a bunch of hard up Muslim clerics and their supporters like those in the FPI then Indonesian Playboy would have been their entry into pornographic heaven; no need to wait for the 72 virgins!

Based on the Supreme Court verdict to jail Arnada, Habib "Hey Baby" Rizieq has called on all members of the FPI to arrest Arnada wherever they find him. What? I thought that Indonesia had law enforcement agencies to do that kind of work. There is absolutely no need for a bunch of hard up thugs to be effecting citizen arrests. The police, for all their faults, are more than capable enough to get a hold of Arnada and get him to jail without the intervention of the FPI.

The criminalisation of the Indonesia press can wait for another post. I have already written a few about criminalisation of the press through archaic criminal defamation laws. But, specifically, how these relate to Arnada will be the basis of a future post.

It is always amusing in the saddest of ways that the FPI considers itself to be judge, jury, and executioner on all things moral. God must be pissing himself (or herself) laughing up there in heaven. God is having this little chuckle about the fact that we are born showing more skin than there is in Indonesian Playboy. Yet, in any event, I have always been taught to believe that God was going to be doing the judging at some point in the future and that we should content ourselves with taking care of our own personal houses.

It is probably a good idea that people who live in glass houses not throw stones.

As it turns out, a recent raid on FPI headquarters has turned up a stack of Playboy magazines. According to Hey Baby, these magazines were for evidentiary purposes. However, I can see God on Judgment Day now: "So, Hey Baby, care to explain how come (no pun intended) all the pages of these pieces of evidence are stuck together?"

It is time that the Indonesian government shows some testicular fortitude in dealing with the FPI.

Schapelle Corby's Sentence to be Reduced?

It has been a while since a Schapelle Corby (photo courtesy of AAP) related post. So, now would seem an appropriate time to make one, particularly considering that there is a very solid likelihood that a large sentence reduction is on the cards. How large remains to be seen, but the Jakarta rumour mill is working overtime, and all indications are that it will be significant.

To be truthful, no one is commenting publicly on this that would be quotable in a verifiable sense. And, stranger things have happened with sentence cuts and other remissions that seemed destined to happen. So, fingers crossed for Ms. Corby and her family that this is something that comes to fruition.

Schapelle Corby lodged a clemency appeal to get herself released on humanitarian grounds. There were fairly solid grounds for the appeal. It is clear that the prison years since 2004 have taken their toll mentally and physically. She is definitely never going to be the same, but one never knows, she might get some semblance of normalcy back to her life on release. The Indonesians have acknowledged her depression and have treated it. The family and other supporters have claimed for a long period of time that Schapelle's mental illness is significantly more serious than 'mere' depression and that she needs to be repatriated to Australia and treated here.

It would seem that the Indonesian Supreme Court has been swayed by the petition and has supposedly recommended to the president, Susilo Bambang Yudhoyono, that a significant sentence reduction be granted. The ultimate decision on clemency petitions rests with the president. However, it is uncommon for the president to go against the recommendation of the Supreme Court in a case like this. Nevertheless, it would seem unlikely that it would be reduced to time served with an immediate release to follow. However, it is worth noting that this is not outside the realm of possibility.

The Indonesians have clearly made their point on the seriousness of drugs and drug smuggling, and an immediate release would be seen as a good will gesture by most. There will still be those that argue she should never have been in Kerobokan in the first place, but that is probably a hypothetical argument for later because what has been done cannot be undone.

And, for these people the continued bashing of Indonesia as a backward barbarian third world nation lacking compassion will go on unabated. It might be worth considering what the priorities are here; seeing Schapelle free or bashing Indonesia, and determining how best to go forward with any media campaign associated with Schapelle Corby's release from prison.

Another possibility is that the original 20-year sentence will be cut in half. And, with expected remissions to be granted in August and December for Indonesian Independence Day and Christmas respectively, it is possible that Corby will be free towards the end of this year or very early next year.

Good luck to her. It would seem that her desire to have a child as a free woman is coming that much closer to becoming a reality.

Indonesia "135 Million" vs. Tommy Soeharto "0"...

The most recent decision in a Tommy Soeharto related case has seen him lose some USD 135 million. This should make a significant dent in his financial position. I am not sure that it is enough to push him to the brink of bankruptcy or destitution, but it should be felt (hopefully it will be felt!).

The Supreme Court finally overturned itself and decided for the Indonesian government in the long-running PT Timor Putra Nasional case. The company, PT Timor Putra Nasional, was a fraud from the start. The company was established with a view to producing a national car by a national car maker. However, the company did nothing more than import cars from South Korea and re-brand them. It was a fraud because the company was benefiting from subsidies and other facilities because it was creating a national industry that was intended to supply jobs to Indonesians and to move away from the reliance on car imports.

In contrast, as hindsight tends to be 20/20, the reality was that this was nothing more than another venture from a Soeharto child designed for personal enrichment under the protection of the iron-fisted rule of a dictator, who just happened to be Tommy's father.

The case went back to the Supreme Court because the Ministry of Finance presented two new pieces of evidence that were not presented at the earlier trial proceedings. These two pieces of evidence were letters from Tommy and the PT Timor Board of Directors guaranteeing payment to the government. This decision, according to Nurhadi, spokesperson of the Supreme Court, ends the appeal process. The decision is final.

An earlier Supreme Court decision in this case had awarded all the assets held by Bank Mandiri to Tommy with any interest that had accrued while the case was being heard.

The case was all over the place for so many reasons. It started with PT Timor defaulting on loans of some IDR 4.05 trillion during the 1997-1998 financial meltdown. In 2003 the Indonesian Bank Restructuring Agency (IBRA) stepped in and took over the assets and managed them through to an eventual sale. For reasons only known to IBRA its due diligence mechanisms failed to uncover that Tommy headed up the company, PT Vista Bella Pratama, who they sold the PT Timor assets to for a heavily discounted IDR 444 billion. This was a pretty significant return on the original investment for Tommy.

In legal moves in 2008, prosecutors argued that the deal had to be illegal because Tommy controlled both entities. The suit claimed the difference between the two amounts. The case was settled out of court with the government taking over all of PT Timor's assets and the IDR 4.05 trillion debt.

The Supreme Court has seemingly relied on this settlement and the new evidence to overturn the earlier decision they reached in the previous hearing of this case.

It remains to be seen as to whether this is some sort of seminal moment in the pursuit of ill-gotten wealth by the Soeharto clan. However, this clearly is a significant victory for the government.

Bali, Drugs, and Australians...

When will Australians learn that carrying drugs in Indonesia is a serious criminal offense? The odds are such that it really is only a matter of time, sooner or later you will get caught out. The penalties that attach to drug offenses reflect the seriousness that Indonesian law enforcement view this issue. If one has any doubts, then have a look at the Schapelle Corby case or those of the Bali Nine. Or, if you are more interested in seeing how you can do as little time as possible for indulging in your excesses, then have a look at the Michele Leslie (or Lee) or Robert McJannett cases (McJannett has indicated that he is petitioning for bankruptcy as his freedom, after a short jail stint, cost him AUD 71,000+).

An Australian, Angus McCaskill, was arrested in the Tuban district in Bali with five packets of cocaine in his possession.

The police have not said whether MCaskill was dealing or whether the cocaine was for personal consumption (red: addiction). This determination will be important in determining how much jail time McCaskill is likely to do. Having not seen the fact sheet it is difficult to say which way his legal representatives should go, but my guess is that if a guilty plea is the option chosen then this will be accompanied by relevant supporting documents to suggest that the fellow is an addict and the drugs were for personal consumption.

This would fall within the gambit of a Supreme Court Circular which directs District Courts to sentence offenders to rehabilitation type facilities or to shorter jail terms where the offenders can get the rehabilitation treatment that they need to be re-integrated into the broader community.

A Brief Overview of the Amendments to the General Courts Law...

This is a slightly modified piece that first appeared over at http://en.hukumonline.com, which is hukumonline's English language site.

One of the busiest periods at the 2004 – 2009 House of Representatives (Dewan Perwakilan Rakyat / DPR), at least in a legislation sense, has been the several weeks in the lead up to the transition to the new parliament of 2009 – 2014. The previous DPR has succeeded in passing a raft of legislation on all manner of substantive matters, including the Second Amendment Bill to Law No. 2 of 1986 on General Courts.

The amendment bill is important as it takes into account the 2006 decision of the Constitutional Court that invalidated parts of the law as it related to the Judicial Commission.

The primary purpose of the amendments is to clarify and codify matters with respect to:

1. Internal supervision of judges by the Supreme Court and external supervision of judges by the Judicial Commission;
2. Strengthen the requirements with respect to the appointment of judges to courts to ensure that the process is transparent and accountable, among others, and to ensure that all judges have successfully completed appropriate judicial training;
3. Regulate special courts and the ad hoc judges;
4. Regulate mechanisms associated with the appointment and dismissal of judges;
5. The prosperity / wealth of judges;
6. Regulate transparency issues related to decisions and time frames to hand-down decisions;
7. Rules to ensure transparency in case fees, and the mechanisms utilized in the management of case fees;
8. Legal aid; and
9. Judicial Honor Board, and the obligation incumbent upon judges to abide by and uphold a judicial code of ethics and a judicial code of conduct.

The bill generally amends current articles to reflect the points noted above. However, the bill also includes a number of new articles to provide specific provisions. For example, between articles 13 and 14 a further six articles have been inserted, namely 13A – 13F.

Article 13A deals with issues regarding supervision by the Supreme Court and the Judicial Commission.

Article 13B deals with matters relating to the integrity and personal characteristics of judges, as well as judges honesty, fairness, and professionalism.

Furthermore, Article 13D deals with matters specifically related to the functions of the Judicial Commission as they relate to external supervision.

Finally, Article 13F permits the Judicial Commission to review / analyze decisions handed down by judges with respect to making recommendations relating to the mutation (rotation) of judges through specific courts.

Judges have certain rights with respect to remuneration including allowances. These are laid out in Article 25, but include a basic salary and positional allowances, as well as health insurance, housing, and transport.

Unfortunately, Article 14 states that to be appointed as a judge a person must be between the ages of 25 and 40. This would seemingly marginalize a vast amount of experienced legal professionals who might want to move to the bench after a long stint in private or public practice of the law.

With respect to case fees and administration the bill inserts Article 52A which states that courts must provide access to the community in order that the community can obtain information about case fees and decisions. Further, courts must provide copies of the decision no later than 14 days from the date the decision is handed down. Failure by the courts on either of these two points will see the Chief Judge of the particular court sanctioned.

The provisions are clearly intended to improve the administration of justice in Indonesia by demanding higher standards in the recruitment process, higher standards and more pro-active supervision of the administration of justice, and increasing and improving the access that the community is entitled to have to the justice system as a whole as part of a citizens constitutionally guaranteed rights to have access to a function, fair, and non-discriminative court system.

As always, enforcement is the key.

High Court and Federal Judicial Officers Get A Pay Rise...

The Remuneration Tribunal has awarded a 3 per cent pay rise to High Court and Federal Court judicial officers. However, it is expected that more rises might be on the way.

The salaries for judges are pretty good, but with increasing workloads and demands a 3 per cent pay rise might not be enough, particularly if the government is trying to attract high calibre people to the bench. For many judges coming out of private or public practice of the law quiet often means a considerable salary sacrifice, making the move a labour of love as much as anything else.

So, the 3 per cent rise takes the base salary of the Chief Justice of the High Court to a respectable AUD 446,580 annually. The Chief Justices of the Federal and Family Courts see their base salaries rise to AUD 378,170 annually.

This pay rise should also see the salaries of Supreme Court judges rise in each of the states. Supreme Court judges earn a salary pegged at 85 per cent of that earned by a High Court justice.

I do not have a problem with judges getting a pay rise as most of them more than earn it.

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.

Keyser Trad, A Racist?

This particular post might be of more interest to my Australian readership and those that have an interest in race relations and defamation in Australia.

Keysar Trad, founder of the Islamic Friendship Association of Australia and spokesperson for Sheik Taj El-Din Hilaly, had sued Harbour Radio, the owners of 2GB, for the comments of Jason Morrison on air. In essence, Morrison said that Trad was gutless, trouble, disgraceful, and dangerous, and also an individual who incites violence, hatred, and racism. These comments were made in 2007 just after the Cronulla riots.

Just on the Sheik, this is the same Sheik that said the following in response to a rape:

"If you take out uncovered meat and place it outside on the street, or in the garden or in the park, or in the backyard without a cover, and the cats come and eat it ... whose fault is it, the cats' or the uncovered meat? The uncovered meat is the problem. If she was in her room, in her home, in her hijab, no problem would have occurred."

Trad went onto sue and won a jury trial. However, Harbour Radio appealed on the grounds that what was said, although defamatory, was true. In the appeal at the NSW Supreme Court, Chief Judge Peter McClellan agreed with Harbour Radio. McClellan J was unequivocal in stating that the comments made by Trad were "offensive", "racist", and "condoned violence".

In dismissing the claim and ordering that Trad pay Harbour Radio's costs, McClellan J said, "There is little doubt that many of the plaintiff's remarks are offensive to Jewish persons and homosexuals". He then went on to say, "I'm satisfied the plaintiff does hold views which can properly be described as racist."

It is of little surprise that Trad plans to appeal. It will be interesting to see where the Supreme Court has erred in its application of the law in order for the appeal to go forward.

Indonesian Supreme Court Circular - Drugs

In an interesting move the Indonesian Supreme Court has issued a Circular that directs courts to place drug addicts and users into rehabilitation rather than sending them to prison. The rationale is that the Indonesian prison system is not conducive to the rehabilitation process and will likely result in recidivist behaviour in offenders and this is apparently not the objective of sending someone to prison.

I am all for second chances and rehabilitation.

Essentially, the Circular directs all Chief Judges at the High Court and District Court level to consider placing addicts and users into rehabilitation centres or other acceptable places and into programs such as detoxification (1 month), a primary program (6 months), and a Re-entry Program (6 months).

However, there are strict conditions on the ability for District and High Court judges to place addicts and users into a rehabilitation situation. These conditions include that the addict or user is caught red-handed and their "stash" does not exceed proscribed limits. These limits are:
1. heroin - 0.15 grams;
2. cocaine - 0.15 grams;
3. morphine - 0.15 grams;
4. marijuana - 1 joint or 0.05 grams;
5. ecstasy - 1 tablet;
6. crystal meth - 0.25 grams; and
7. other narcotic drugs in classes I through III and psychotropic drugs in classes I through IV.

It will also require a statement letter evidencing that the individual is in fact using and that the supporting evidence does not indicate that the individual is in fact a dealer or trafficker.

If the addict or user meets these conditions then it is likely that they will now get a slap on the wrist and sent to rehabilitation rather than go to jail.

The Circular is No. 07 of 2009 and is current as of 17 March 2009.

If anyone is interested in a copy of the Circular you could ask hukumonline.

Bali Nine, Death Penalty, Appeals, and the Supreme Court

In a turn of events which is likely to see a call for the death penalty process to be sped up against Andrew Chan, Myuran Sukumaran, and Scott Rush, the three members of the Bali Nine sentenced to death and biding their time in Kerobokan prison, the Supreme Court has prepared a document that clearly puts the timing of appeals and ultimate executions squarely in the hands of prosecutors.

This is interesting timing for a number of reasons, none more so than this is an election year, and this is clearly an emotionally charged issue, with divergent views on the death penalty in general. However, in this case there is the added factor that the current president has adopted a hard line approach to drugs and those that deal in them. Therefore, to say the prospects of a reprieve for these three has taken a dive would be an understatement.

I am anti-death penalty and would hope that the president would exercise compassion once all other legal avenues have been exhausted and only a presidential act of clemency remains. I would hope that the sentence would be commuted to life in prison. The reality is that Australians, and all others as well, must realize that the trafficking of drugs in Indonesia exposes you to the death penalty. This is not Australian where you might do a 7 - 10 year stretch in jail for the equivalent crime.

You do the crime, then you deserve to do the time. I just think that in this case, and despite the seriousness of the crime, the death penalty is too severe a punishment. People will undoubtedly disagree with me on this, and you are free to do so, I believe in second chances in circumstances such as these, particularly in Rush's case where he has confessed to his role and expressed remorse at his actions. In this case, rehabilitation is a very real possibility. Here is a young kid who could conceivably still make very long and positive contributions to his community.

Unfortunately, the signs are looking bad for these three as the process in drafting the document and the discussion of it has seen them mentioned specifically as individuals that the new provisions are most likely to affect. Ultimately, these three are to become pawns in the Indonesian - Australian bilateral relationship and presidential politics.

Simple message - Drugs and Indonesia do not mix (particularly through airports).