Anti-Corruption Forces Under Siege -- Indonesia...

I will be wearing my best white outfit in support of this action. I am not sure what difference it will make here in Sydney. Perhaps I can swing around Maroubra way and set up shop out in front of the Indonesian Consulate in my best whites and a sign or something.

It is a sad indictment of Indonesian politics and law enforcement that the Indonesian Corruption Eradication Commission (KPK) is being slowly but surely set up for dismantling. The KPK has grown into an organization that has had some considerable success. It would seem that this success is the root cause for the animosity that is now prevalent between the KPK and the police and the Office of the Attorney General.

It was an unfortunate and ultimately untimely coincidence that the Head of the KPK found himself embroiled in a over-heating love triangle (perhaps because of his fancy for the old triangle of love) that ended in the murder of his competitor for the triangle of love.

Probably what is even sadder, but simultaneously more interesting, is that the President who campaigned for a first term on a platform of cleanliness or anti-corruption, and then similarly campaigned for a second term on a similar platform all the while toting the successes of the KPK and the great strides Indonesia has made in this area, has remained out of the fray.

In fact, the presidential spokesperson on legal affairs has stated in unequivocal terms that the president is watching but is not going to become involved. In essence, the president is going to let this thing run its course. Presumably even if it means that the KPK is stripped of its powers and ultimately dismantled.

By my reckoning this would be the perfect time for the president to stand up and be counted. If he truly wants to leave a legacy of reform, good governance, and more importantly clean governance, then this is the issue to stand up on. If for nothing else, the man must stand on his principles, and judging by his campaigning and public statements his principles are that anti-corruption is something that he holds dear. Now, if that is true, now would be a good time to prove it.

The idea that the president is going to stand back from this one makes a mockery of all those who argue that having won 60% of the popular vote in the presidential elections that the president has a mandate to force through change. The man seemingly does not have the testicular fortitude to stand up for the one institution that can cement his legacy as a reformer, as a man dedicated to the people who have suffered for so long at the hands of corrupt officials. No, at this rate the president will be remembered as the president who presided over the dismantling of one of the more prominent successes of the reformasi period.

So, get out your white shirts and stand united with those who support the work of the KPK to date and support the idea that the KPK must continue with the ability to do this work into the future.

Viva KPK!

Yemen - 12-Year-Old Dies During Childbirth...

This is one of those moments where you are thinking about what you were doing at 12 years of age. It certainly was not thinking about getting someone pregnant and for my female readers I bet it was not about giving birth to your first child sometime through that last year before reaching teenager-hood.

I consider myself culturally aware and sensitive and all those other politically correct ideas, but for the life of me I cannot fathom the interest that some men have in wanting to marry pre-pubescent girls and then wanting to consummate that marriage after the girls first period. I am sure that there are arguments to be made for and against whether the Koran permits such unions.

My take as a non-Muslim who has read a little was that perhaps these unions might have been part of the cultural landscape and perhaps even permissible back in the prophet's day but even then the prophet was given special leeway from Allah in this respect. And, it was very much a case of the prophet saying do as I say and not as I do on this particular front. I am guessing that if I have misunderstood on these details someone is sure to want to set me on the straight path.

Anyways, this post is about a 12-year-old Yemeni girl who was forced into marriage as an 11-year-old and subsequently fell pregnant. She has died during childbirth and the child she was carrying has also died. Apparently, Fawziya Abdullah Youssef, endured a complicated labour and delivery that lasted some three days, according to the Yemeni Organization for Childhood Protection (Seyaj).

The problem is that the law that has been passed setting a statutory minimum age for girls to marry has not been enacted by the President, Ali Abdullah Saleh. So, even if law enforcement was inclined to stop the practice of grown men taking young girls as brides they could not legally do it.

Another issue is that even if the law is signed off on by the President then the reality is that many Yemeni families are impoverished and illiterate. When this is combined with ignorance of the harm that young girls will suffer as a consequence of being married off before reaching there teens means that tragedies such as Fawziya are all the more likely to occur.

Seyaj estimates that the marriage rate for girls under the age of 15 is approximately 50% in the rural parts of Yemen.

The marriage of children is not an uncommon thing in Yemen. I have written about this in the past here.

Child Marries The Money Lender -- Dad Now Debt Free

This is one of those moments that you just sit back in your chair, shake your head, and say WTF is wrong with the world.

Being a father of a wonderful and cute son, I cannot fathom ever contemplating trading the little fella in to pay off a debt. Maybe I do not understand absolute poverty and the absolute desperation that comes with such abject poverty, but all the same my humanity does not allow me to consider my son as a chattel that can be bought, sold, or traded.

Yet, the police in Muladi in Southern Bangladesh are investigating the reports that a 13-year-old has been married off to a 75-year-old money lender as a way of paying off a debt owed by the father to the money lender. The police have yet to unravel the alleged financial arrangements and what the transaction involved.

However, it is reported that the debt was for about 4000 taka, which is about AUD 66. The debt apparently arose when the girl's father borrowed some money from the money lender for repairs to the family home after cyclone Aila in May 2009. It is also reported that the father of the girl also borrowed a cow from the money lender.

In Bangladesh's defense, it is a criminal offense to marry a girl under 18 years of age.However, the practice of child brides is allegedly rampant among Muslims, and many parents alter the age of their daughters on official documents in order to skirt this prohibition.

As I said, I cannot imagine the desperation that would lead one to, in essence, sell their child.

Views of Sydney Harbour...

More of me playing around with the camera...

The Sydney Harbour Bridge...

Just me playing around with the camera...

Will At Nine Months...

For those of you who might be interested in seeing how little Will is getting along and becoming not so little anymore.

Yes, I am a proud father! Guilty as charged!

A good working week to all.

New Film Law -- Indonesia -- Extended Version...

This was originally written for http://en.hukumonline.com and can be found there. This is a slightly amended version of that piece.

Overview

The bill is not short on controversy and not all stakeholders are happy about the provisions that have been codified into the new law. The bill, as most Indonesian laws do, make grand and bold statements as to the context in which the bill was drafted and debated. In this case, the bill suggests that the reformasi that Indonesia has undergone since 1998 and the fall of the New Order Regime of the former president Soeharto included not only a political reformation but a cultural one too. As part of this cultural reformation the manner in which film is viewed has changed.

Consequently, the previous regulatory framework for film, Law No. 8 of 1992, is no longer fit for purpose and needed to be repealed and replaced with a piece of legislation that reflects the current state of the Indonesian film industry in 2009.

A Step In The Right Direction
The government views the new law as a step in the right direction with respect to the promotion and development of the thriving Indonesian film industry. However, in contrast, some within the thriving Indonesian film industry are openly questioning whether the new law is going to be conducive to the freedom of expression they have enjoyed in recent years to make the films they have wanted to make or whether the new provisions are going to stifle their creative opportunities with respect to making films that satisfy their creative energy. And, any stifling of the creative aspects of film-making would seemingly fly in the face of a recent Presidential Instruction on the Creative Economy.

Principles of the New Law
Indonesian laws generally include simple statements that are then left to either the elucidations of the law to explain or later implementing regulations to provide clarity to the statement with respect to how it is to be interpreted or enforced. The principles are a perfect case in point. Article 2 simply lists nine points which seemingly constitute the principles upon which the law is to be based, and presumably interpreted:
a. An Almighty God;
b. Humanity;
c. Unity in Diversity (bhinneka tunggal ika);
d. Justice;
e. Benefit;
f. Legal certainty;
g. Collectiveness;
h. Partnership; and
i. Policy.

Each of these is explained in detail in the elucidations. For example, the unity in diversity principle would require that films respect the diversity of cultures and ethnicity that is prevalent in Indonesia. Whereas, the definition for benefit is pretty much self-explanatory and requires only that films bring benefit to not only the people but the state as well.

Objectives and Functions
Similarly the objectives and functions of the new law are nothing more than mere statements. Unfortunately, the elucidations provide no further insight other than to say that all of the terms in Articles 3 and 4 are self-explanatory. Among the objectives are: advancing the prosperity of the community, introducing the cultures and diversity of Indonesia to the world, to educate, and to guide honor, among others. Whereas the function of the law is much more simple: cultural, educational, entertaining, informative, drive creative works, and economical.

The Debate
The debate, although seemingly settled, with the passage of the bill through the House of Representatives (Dewan Perwakilan Rakyat / DPR) on 8 September 2009 may not be the end of the matter as there have been concerns raised with regards to whether or not quorum was reached in the DPR when the bill was passed. However, a more pertinent debate is whether the provisions infringe on the freedom of expression that Indonesians believed they enjoy as part of the series of Constitutional amendments made at the beginning of the reformation period or not.

At the heart of this debate is whether a modern and developing democracy such as Indonesia needs a censorship board or agency to vet film content or whether a film classification board would be sufficient for the purpose of rating films based on their content. Furthermore, the new law stipulates that film scripts must be registered and listed with the minister at least three months prior to any filming being undertaken. Ostensibly, this is to ensure that no two films are being made with the same title or on the same content / issues. Nevertheless, this provision would seemingly provide the power to the minister to vet and then veto any film which the minister deemed to be inappropriate.

Moral Values and Societal Norms
The provisions of the new law require that all films conform to explicit societal mores and norms, and these are set out with respect to what is prohibited in Article 6. Simple, scenes that show violence, gambling, the misuse and abuse of drugs and other addictive substances, pornography, provocation between ethnic groups or races, questions religion or religious practices, encourages criminal activity or lowers the honor of the community are all prohibited.

In essence, a foreign film like Ocean’s Eleven, which deals with gambling, and therefore would seemingly have to fall foul of the censors and be prohibited from screening. Similarly, local Indonesian films such as the martial arts film, Merantau, might also fall foul of Indonesia’s new censorship board as a consequence of the scenes that portray violence, drugs, and perhaps even scenes devoted to issues of human trafficking.

Anti-Monopoly Provisions
The inclusion of anti-monopoly and unfair business competition provisions in the new film law in an interesting development with respect to re-legislating an area already covered in other laws and an area where there is a specific institution, the Commission for the Supervision of Business Competition (Komisi Pengawas Persaingan Usaha / KPPU), in place to hear complaints and allegations that companies have, or are, engaged in monopolistic and unfair business practices.

The reality is that those involved in the film industry must now pay particular attention to the manner in which they make their films, and then deal to have them shown in Indonesian cinemas and theatres.

Article 13, for example, states that all those involved in the showing of films must not only show the films of one film-maker or show imported films for more than 50% of the hours they show films in any six-month period. A breach of these provisions is deemed to be the exercise of a monopoly or engaging in unfair business practices.

Article 14 prohibits the entering into an agreement with any film business where that agreement is designed to hinder a competitor. Any agreement that is deemed to hinder is a breach of the provision.

Both Article 13 and 14 are then addressed in Article 80 which sets out the penalties for breach. These penalties include, for the breach of Article 13, a term of imprisonment up to six months or a fine of IDR 100 billion. For a breach of Article 14 (Art. 80(2)) is similarly a term of imprisonment up to six months and a fine of IDR 100 billion.

The question is whether or not the film law needs to define what constitutes a monopoly or an unfair business practice. It is clear that the purpose of the KPPU is to make these determinations within the framework of the prevailing law. The new Film Law does not mention the KPPU by name but Article 80(3) would imply that under the prevailing laws and regulations currently in force in Indonesia that the most likely venue for any dispute regarding monopolistic and unfair business practices is the KPPU.

Nevertheless, the provisions of the film law would seemingly restrict the ability to determine what constitutes a monopoly or an unfair business practice to what is stated in Articles 13 and 14.

Age Classifications
The new law sets out four classifications; all ages, 13+ years of age, 17+ years of age, and 21+ years of age. Films for the 21+ classification can only be screened between the hours of 23.00 and 03.00 and these films cannot be screened in a public place.

Foreign Films and Film-Makers
Foreign film makers wanting to use an Indonesian location must obtain the permission of the minister prior to shooting being commenced. The Elucidations to this provision only state that it is ‘self-explanatory’. Presumably, the permit procedure would require that the foreign film maker submit a script and all other relevant information prior to the minister considering a permit application.

Expansion of the Indonesian Film Industry Through Quotas
The government’s argument for the new law supporting the development and expansion of the Indonesian film industry relies on the rather short Article, Article 32, which stipulates that at least 60% of all the hours that films are shown during any six-month period must be Indonesian films. The question many film makers have is whether they can make a sufficient number of films in light of all the prohibitions they are under with regards to content.

Interestingly, this provision seems very unlikely to guarantee quality local film making, but rather seems more likely to guarantee mass production of films designed to fill a quota. There are legitimate concerns that this particular provision may serve to undermine quality Indonesian film making in the future.

Film Appreciation
Film festivals, or more broadly film appreciation activities, are specifically regulated under the new law. These activities can be undertaken by private individuals, groups or organizations, the central government, or regional governments. Nevertheless, specific provisions on how the relevant articles are to be implemented will become clearer once the associated Ministerial Regulations are issued.

Central Government and Regional Government Authorities – Devolution of Power
The devolution of authorities under the provisions provides that the regional governments can facilitate film production within their respective regional areas. This would include facilitating Indonesian films to satisfy the 60% content provisions noted previously. Regional governments would also be required to facilitate the production of documentary films on their respective cultural uniqueness and other regionally specific issues.

Facilities and Incentives
The central government has responsibility with respect to facilitating film-making through the provision of tax and other kinds of duty and excise exemptions and reductions.

Funding
The funding of films is set out as a joint responsibility that would permit the central and regional governments to contribute. However, it is expected that any funds that are to be provided by government would be best administered through the creation of a film corporation which is tasked specifically with managing these funds. Unfortunately, the new law and the elucidations do not provide any additional input on this issue beyond funding being a joint responsibility.

Sanctions
The new law sets out both administrative and criminal sanctions. The administrative sanctions are the standard written warnings, fines, temporary suspension of activities, and the revocation of licenses and permits. The criminal sanctions provide for terms of imprisonment of between 6 months and 2 years, and fines of between IDR 10 billion and IDR 100 billion.

For example, the screening of a film that has not been passed by the censorship board is liable for criminal penalties that include a term of imprisonment of up to two years or a fine of IDR 10 billion.

Where the breach is committed by a corporation, then the penalties are increased by one third.

Censorship Board
Finally, the current censorship board is to remain in place until such time as the new censorship board is installed. The new censorship board must be installed no later than 18 months from the date of enactment of the new law.

The Censorship Board is classified as an independent body that reports to the president through the relevant minister. The primary job of the Censorship Board is obvious, to censor films and film trailers. Every film that is to be shown in Indonesia must have successfully negotiated the Censorship Board.

The Censorship Board is to do its work based on the provisions of Articles 6 and 7. Interestingly, the Censorship Board, aside from just making a determination as to whether a film or a film trailer meets the exacting standards of Articles 6 and 7, can also make recommendations for the imposition of sanctions on film-makers who breach the provisions of the law.

The Censorship Board is to comprise of 17 individuals of which 12 are to be nominated by the community and 5 are to be nominated by the government. Each member is to be appointed to a four-year term and may be re-appointed for a further four-year term. Appointment is by the president in consultation with the DPR.

Conclusion
The new law is not without some controversy. The majority of this controversy has centered on whether the new law will impinge upon, and restrict, creative film-making. It is clear that the new law holds this potential. Nevertheless, as with any law the proof of the pudding is going to be enforcement. If the government is committed to enforcing the law as it has passed then there would appear to be very little wriggle room for film makers.

Films are required, under the new law, to meet some very exacting standards and as such any deliberate breach of the provisions to make a point would be a brave move on the part of film makers. This is particularly so when a script must be registered with the minister before production can start and then the film also has to negotiate a Censorship Board rather than a classification board. This is even more onerous when film makers realize that the Censorship Board has the power to recommend sanctions on film makers determined to have breached the prevailing provisions in Articles 6 and 7.

Finally, however, the entry into law appears a mere formality with the president expected to sign the bill.

Sumpah Pocong...

Sumpah Pocong is often referred to as the ultimate oath. However, it is more like an oath of innocence. Sumpah pocong involves the oath taker being wrapped in white cloth and then swearing an oath to their innocence. The white cloth that the oath taker is wrapped in resembles the death robes or shroud that Muslims are buried in. Therefore, the sumpah pocong is considered to be the ultimate oath because one is said to risk death or chronic illness if they lie about their innocence while wrapped up.

The sumpah pocong has always been a part of the Indonesian cultural landscape, and there is many a horror film that uses the pocong as a means of instilling fear. However, the sumpah pocong is coming back to the fore as a means of attempting to clear one's name in legal disputes. Prita Mulyasari, who has been battling the state and public prosecutors in a defamation matter has recently offered to take one, a sumpah pocong that is, as a means of declaring her innocence of a defamation charge.

I am not sure how the sumpah pocong would do this other than perhaps to indicate that Prita did not intend to defame Omni International Hospital. But, a more pertinent question would be, "how long should the courts wait to see whether Prita has told the truth?" This is important because the risk of lying while doing the sumpah pocong is death or chronic illness. It is my understanding that death and chronic illness may not necessarily be instantaneous if the oath taker tells a little fib about their innocence.

In any event, in a case from Banyuwangi in East Java, Rahmatulloh has offered to take a sumpah pocong to prove that he is innocent of charges that he is a shaman (dukun) and that he did not kill his nephew, Hamid, by using black magic on him. Hamid's father, Pon, claimed that Rahmatulloh used black magic to kill his son as his son was healthy one day and then died after suffering from some bizarre symptoms. This presupposes that bizarre symptoms are indicative of black magic. Maybe, the villagers need to sit down and watch a few episodes of House to see that bizarre and weird symptoms are not always indicative of black magic.

TV One carried some coverage of the sumpah pocong being performed. The sumpah pocong oath is usually done in a local mosque under the guidance of an agreed religious leader of the relevant community.

The video is in Indonesian and is embedded below.

Prita Mulyasari -- Defamation -- The Retrial...

The Prita Mulyasari defamation case, or perhaps "saga" is a better word, continues with the retrial commencing in the Tangerang District Court yesterday.

This case really does not contain enough legal issues of consequence for the prosecution to be pursuing this as some sort of test case for the provisions on defamation in the Information and Electronic Transactions Law or for that matter the overlap of those provisions with the ones contained in the Indonesian Criminal Code.

The saga is probably worth a PhD thesis, maybe it could be mine.

Brett over at Spruiked is always a man on a mission, and the Prita case is one he is quite vocal about.

If anything the case highlights the severe need for ongoing or continuing legal education in order to ensure that all legal practitioners are up-to-date with current legal developments and practice. Simply, this was not the case to run as a test case. Even more interesting is that in the retrial the prosecution has decided to lead with expert testimony from a linguist who admits on the stand that he has no real conceptual understanding of what defamation is in the legal sense.

The expert testimony of the linguist was simplistic at best; the contents of the email could be considered defamatory because there was a sentence that questioned the professionalism and politeness of the hospital staff. Ah, OK. But tell me you have more!

The idea that doctors can be unprofessional and hospital staff can be rude and impolite is hardly a revelation. There are probably more people floating round in the world who have a bad story to tell about the way they were treated in a hospital than those that have a good story to tell.

A visit to a few Australian websites and a good read of some of the news there would highlight that it is not uncommon for hospitals to be criticized for their poor service and professionalism. There have been a spate of recent cases over the last few years of women miscarrying in hospital toilets as they were made to wait for treatment.

The idea that Prita was treated unprofessionally and impolitely is not some kind of out of the ordinary shocking development. In any event, and as I have always maintained, even if by some magical alignment of the stars her email was defamatory, then the best course of action to defend the charge would be that the statements contained in the email are the truth.

The reality here is that Prita was diagnosed with dengue fever at Omni and after becoming fed up with the treatment she was receiving at Omni, checked herself out and into another hospital where she was diagnosed with mumps, treated and subsequently got well. At least, this is how I understand it. I am sure that if that is an incorrect understanding someone will inform me of that. And, then I will make a note here (as a postscript).

The fact of the matter is when you are sick and you go to the doctor you are expecting that the doctor will get the diagnosis right and treat you. A misdiagnosis can sometimes happen but all the same a misdiagnosis is a misdiagnosis and in that sense it is not unreasonable to question the professionalism of the doctor involved.