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.

Is SBY a Walking, Talking Trigger for Natural Disasters?

You know what they say, "small things amuse small minds". There is nothing amusing about the recent earthquakes in Padang, and the more than 1000 lives lost there, or the tsunami that devastated Aceh in 2004. However, the idea of linking the current president, Mr. Susilo Bambang Yudhoyono or SBY, to the regular natural disasters that confront Indonesia is. It is not only amusing, but reeks of political opportunism. When politicians and others must be focused on disaster response and then putting into place appropriate disaster response mechanisms to ensure that aid and assistance gets to where its needed most and fast.

The recent Padang earthquakes has once again highlighted how under-prepared and ill-equipped Indonesia is with respect to responding to natural disasters. This is no longer a simple case of passing a little bit of legislation here and there, and pumping out a few ministerial regulations. It is now a matter of ensuring that the provisions of the laws and regulations as they currently stand are given the amount of resources required to guarantee that they function.

There will always be disasters that one cannot prepare for, or no manner of preparation will be enough. The tsunami in Aceh is evidence of that. Yet, there are still initiatives that can be undertaken to minimize the tragic outcomes.

Anyways, back to the original intent of the post; is SBY to blame for the earthquake?

It seems a little far-fetched to suggest that SBY is responsible for the earthquake. He might have been re-elected by 60% of the population however this is hardly a mandate to shift tectonic plates. SBY might even think that he is God-like, but there is a big difference between God-like and God.

The whispers persist though that SBY is an unlucky man. He was born on an unlucky day where the date and the stars were aligned against him being lucky. Now, for an unlucky man, he has certainly been pretty lucky when all things are considered; rising through the ranks to general, a stint as a cabinet minister, and now a second term as president. Most Indonesians would consider that to be pretty lucky.

Then again, there have been a litany of natural and man-made disasters during his tenure. So many, in fact, that there is an old joke that SBY stands for "selalu bencana ya". The translation of which is 'always disaster yes', which sort of loses its impact as a play on the president's initials.

Permadi, is a politician that was originally associated with the Indonesian Democratic Party for Struggle of Megawati, but who of more recent times has shifted allegiance to Gerindra, the party of Prabowo. Permadi is known as a practicing mystic. He is also known for his penchant of wearing all black clothes, allegedly the "all black" theme includes his underwear. Now, according to Permadi, the Primbon is pretty clear that the numbers in the president's date of birth are unlucky. They are numbers that will always attract natural disasters to Indonesia.

So, for Permadi, the best option is that SBY step down from the presidency and focus on other things. It is clear, to Permadi, that if SBY refuses to show heart and step down a bigger and more devastating natural disaster will befall Jakarta. Is this irresponsible fear-mongering, political opportunism, or a genuine belief that the president is an unlucky man? It is a bit of everything, but that said, it hardly seems likely that the president is going to resign from office because people think he has been born under an unlucky alignment of stars.

What is a little more bizarre for me is that the president gives this idea credence by addressing it. A couple of years ago in an address to local officials in West Sumatra he broached the topic and said something along the lines of, 'just because I am president does not give me the power to command the forces of nature'. I guess there is nothing like feeding the fire.

My condolences to all those who lost family, friends, and colleagues in the devastation wrought by the two earthquakes last week. May you find the strength to rebuild your shattered lives and may the government get its act together enough to assist you through the challenges you face.

(Photo courtesy of Reuters)

Polygamy -- A Solution to Adultery and Divorce?

Keysar Trad tends to be a polarizing figure. The President of the Islamic Friendship Association of Australia is renowned for speaking his mind. His views on polygyny and polygamy are likely to give rise to heated debate, or none at all, as to whether the practice of a man having two or more wives is acceptable within the cultural framework prevalent in Australian culture at the current time.

Trad's views are not anything new in the sense that he has held them for a long while and spoken of them often. Most recently at the Festival of Dangerous Ideas in Sydney last weekend (3-4 October 2009 at the Sydney Opera House) as part of a presentation on polygamy and other Islamic values.

The idea that polygamy is an Islam or Muslim issue is not entirely true. So, it is always interesting that it is portrayed as such with comments like, in Judeo-Christian beliefs we marry one person for life. The Emperor Justinian introduced the concept of a legally enforceable monogamy in 534.

Nevertheless, where this gets all a little tricky is the suggestion that polygyny or polygamy might be a means of dealing with increasing adulterous behaviour and divorces that result as a consequence of such behaviour. This seems to me to be an over-simplification of a complex problem. That is not to say that sometimes the simplest of solutions are the most obvious, but it seems to negate our very nature as human beings to be jealous of others. It is not unheard of for people to kill one another of petty jealousies.

Yet, what is good for the gander must also be good for goose. Not only men have affairs, women have them too. So, if polygyny and polygamy are a means of reducing adulterous behaviour and subsequent conflict and divorce, then women who have affairs must also be afforded the opportunity to take on a second or third or a fourth husband as required. Let's face it, if the viagra is no longer cutting the slack, women have needs too (so I am told). Yet, polyandry is frowned upon.

It is worth noting that bigamy in Australia will set you up for a possible jail stint. Hence, it is much more practical to go and get a little bit on the side as an affair rather than marry to get it on the side. Nevertheless, the law recognizes that some people opt for long-term affairs and deals with the issues that arise with the existence of a whole other family. The new "mistress laws" as they are sometimes referred, are in fact an amendment to the Family Law Act of 1975. It is also worth noting that Australian law recognizes plural marriages for the purposes of the division of property when the plural marriage fails / dissolves.

Polygamous marriage occurs in Australia. The manner in which it is done shows a good deal of creativity in getting around the criminal provisions that prohibit plural marriages. In many ways it resembles the Indonesian practice of "kawin siri".

Kawin siri is a marriage ceremony that is witnessed and conforms to the standards imposed on Muslims with respect to being married in the eyes of God. It is, however, not registered and therefore is not legally recognized. In the Australian context something similar happens. The couple are married according to Islam. However, the marriage is not registered and in a very strict legal sense the husband and his second, third, or fourth wives are living in a de facto relationship and not a legally recognized marriage.

Nevertheless, as was noted, the amendments to the law would mean that the second, third, and fourth wives in the event of a breakdown of the marriage / de facto relationship would be entitled to claim property or support.

Trad relies on the "fact" that Islam demands very specific requirements from a man before he can enter into a plural marriage, including the permission of his first wife. The arguments as to whether the first wife really has any choice are arguments for another post, perhaps. However, it is interesting to read the argument characterized in this way:

"Yes, polygyny may lead to jealousy. We are all human. But in a caring and sharing world where we become euphoric when we give to those in need, sponsor orphans and provide foster care, the ultimate in giving is for a woman to give a fraction of her husband's time and affection to another woman who is willing to share with her. It is a spiritually rewarding experience that allows women to grow while the husband toils to provide for more than one partner."

I am not sure whether I have written this post to spark debate or merely because I find the arguments somewhat intriguing. In any event, perhaps the question must be, "should bigamy be a crime?"

(Picture courtesy of here).

Abortion in Australia -- A Survey...

A recent survey of 1873 electors in Australia showed that 57% of them support a woman's right to have an abortion "readily when they want one". The results of the survey suggest that a minority is dictating government policy on the legality of abortion in Australia generally, and in the states specifically. Victoria and the ACT have decriminalized abortion. WA has amended its laws. All other states and territories have abortion provisions on their criminal statute books.

It appears that politicians are more concerned about being seen to be pro-abortion than they are about being seen to be pro-women's rights.

Consequently, any moves towards decriminalizing abortion have been hampered by minority groups. So, perhaps democracy is not always as simple as the majority imposing their will on the minority. It would seem that in some debates that the minority quite often punches above its weight.

However, it is worth noting that in a similar survey from 20 years ago, the percentage of those that agreed with a woman's right to have an abortion if, and when, she wanted one was only 38% percent.

Queensland, according to the survey results, is the most pro-abortion state, with some 63% of respondents saying they favoured a woman's right to have an abortion. This is interesting because Queensland is currently pursuing a young couple who procured a miscarriage (sometimes reported as an abortion) by acquiring the drug RU 486 (this is not the morning after pill). What makes this interesting is that the young woman being charged is thought to be the first woman in more than 50 years to be charge with procuring her own miscarriage.

The actions of the woman and her boyfriend are illegal because RU 486 is only available at a limited number of medical practitioners. The RU 486 that was used in this case was sourced from overseas.

The abortion debate is an interesting one in Australia considering the studies show that growing majorities in the primary voting demographics support a woman's right to an abortion. This makes the arguments usually put forward by politicians that the electorate is not in support of a move towards decriminalization, wrong. Even more interesting is research that suggest more than 75% of politicians themselves are pro-choice.

The current study is available in the journal People and Place and published by the Centre for Population and Urban Research at Monash University.

Look Whose Smiling Now...Will it Last?

There are some things that just beggar belief and then there are those things that just seem too stupid for words. But, any of you that have read this blog will know that I am rarely stuck for words even when things seem to be too stupid for them.

Comm. Gen. (Police) Susno Duaji found time to make a visit to the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK) to get an update, or as he would prefer to call it, a clarification. Why is this too stupid for words? Anyone who thinks a little bit about this situation will see that this is nothing short of a very public attempt at intimidation. Duaji is saying, "You wanna mess with me, then you end up a suspect, and out of a job!"

This sort of behaviour is reminiscent of a Mafioso made man. It is the behaviour of a man who thinks his back is covered and he is protected. Just sometimes, and only sometimes, these are the people that are most exposed. If for no other reason than they are expendable as the bigger fish look to tie off any loose ends.

By putting himself front and centre on this one, Duaji also becomes the most likely to take the fall or become the scape goat when this whole affair goes pear-shaped. And, it will go pear-shaped, and perhaps soon.

The focus here needs to be only on Duaji at this point in time. Somehow, I believe that there are plenty of people who would share my belief that Duaji wants it no other way.

This post does not lend itself to a very long expose. The spat between the KPK and Duaji, and perhaps the Police, is long on details. Nevertheless, there are a few pertinent details that are worth repeating, along with some educated speculation about why it came about in the first place. It is also worth noting that this is bigger than one man and a couple of state institutions in the form of the KPK and the police.

There are others involved here. This case involves a traceable money trail and it goes without saying that perhaps the Indonesian Financial Transactions Reports and Analysis Center (Pusat Pelaporan dan Analisis Transaksi Keuangan / PPATK) uncovered a trail of cash and other illicit payments that may implicate a number of those individuals that seem intent on shutting down any KPK investigation into Bank Century, and by default Bank Indonesia (Indonesian Central Bank).

Interestingly, if this case does involve BI, and it seemingly does, then who would be involved at that level? When the Bank Century bail out was being discussed and ultimately approved, the Vice President-elect was at the helm. One would have to wonder whether or not there is going to be a concerted effort to shield the VP-elect from any fallout that may eventuate. So, in that case, who takes the fall? Sri Mulyani Indrawati?

It would also seem that the Office of the Attorney General is intricately and intimately involved in the process of facilitating this fiasco. There is plenty already in the public record that suggests that, at least, at the second tier level of AGO officials there was a concerted effort to facilitate an end to the Anggoro Widjojo investigation.

This is a case that will unravel because their are too many hands in the cookie jar.

There is little doubt that Duaji has gone "balls to the wall" on this one. He is investing everything that he has to protect his interests, and perhaps the interests of some others as well. So much so that there are clear breaches of the police code of ethics with respect to the abuse of authority and in terms of more technical aspects of police officers doing their duty and fulfilling their obligations as officers.

It is time that the Chief of Police and the President became more pro-actively involved in this issue. The Chief of Police must stand Duaji down until the investigations are complete.

The potential for this mess to become even uglier and dirtier is huge. Sometimes it is worth while just sitting back and thinking about how big this case has become and how big it is likely to become.

Is it big enough to bring down SBY? Who knows? What does seem certain is that more heads are going to roll!

(Photo courtesy of here)

Indonesian Asylum-Seekers Sent Home...

A group of 62 Indonesian asylum-seekers who were intercepted north of Broome of the north-west coast of Australia back in September 2009 have been sent back to Indonesia. The 62 men were moved to the Christmas Island detention / refugee processing centre.

After processing their claims, it has been determined that none of them meet Australia's strict criteria for asylum. According to the Immigration Minister, Chris Evans, there was nothing that these individuals were claiming that would trigger any obligation incumbent on Australia with respect to protection. They also failed to meet any criteria to be classified as refugees under the Refugee Convention.

All of them claimed to hail from Java.

Once again, according to the minister, Australia does not issue protection visas or refugee status to those only seeking "better economic opportunities". The group 'voluntarily' returned to Indonesia.

Australia and Indonesia have a long history with respect to Indonesians seeking asylum or refugee status in Australia. The above cartoon reflects a little of that history, and can be found here.

Are You Kathlik?

If you are, or even if you aren't, I hope you have a sense of humor!

Three little boys were worried because they could not get any one to play with them. So, they decided that the reason no one would play with them was because they had not been baptized and, also, because they did not go to Sunday School.

So, off they went to find the nearest church.

But, when they got there, there was only the janitor available.

One of the little boys said to the janitor, "we need to be baptized because no one will come out and play with us!" "Will you baptize us?"

"Sure," said the janitor.

The janitor took the boys into the bathroom and dunked their little heads, one by one, into the toilet bowl. The proclaimed the janitor, "You are now baptized!"

Once the little boys got outside the church, one of them piped up, "So, what religion do you think we are?"

To which the oldest one replied,

"We are not Kathlik, they pour the water on you!"
"We are not babtis, they dunk all of you in the water!" and
"We are not Methdiss, they just sprinkle the water on you!"

At which point, the youngest chimed in with, "Didn't you smell that water?"

All the little boys said in unison, "Yeah! What do you think that means then?"

To which the youngest one replied, "I think it means we are Pisspatarians!"

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.

Pro Bono Legal Work in Australia...

There are about 50,000 lawyers in Australia and about 5,700 of those have signed onto the National Pro Bono Resource Centre to get lawyers to do 35 hours of pro bono work every year. This is a significant jump in lawyers signing on. The previous year saw 2,900 lawyers participating.

Well, figures released this week shows that these lawyers did some 183,771.5 pro bono hours or almost AUD 46 million of pro bono work. This figure is costed at AUD 250 per hour which is probably lower than the average hourly charge out rate for most. The number of hours is up from 113,356 hours of the previous year.

It is worth noting that of the 44,300 lawyers not signed up to the program there are very many who do pro bono work as well. Therefore, it is fair to say that Australian lawyers are making sizable pro bono contributions as the rule rather than as the exception.

Governments never have the money to properly fund legal aid services, and therefore pro bono work serves to offset some of the lack of funding. The other primary beneficiaries of pro bono work are charities and non-government organizations.

Public interest law like legal aid is always challenging and pro bono work is always a good way to vary your routine and to keep your skills up to date in areas of law that you might not practice on a regular basis.

(Cartoons courtesy of here)