December 27, 2012 · 07:51

The finale for the Lapindo saga? (Indonesia)

It’s perhaps a bit surprising that Indonesia’s Constitutional Court hadn’t gotten involved in adjudicating the Lapindo claims earlier, but its latest decision seems to be an attempt to set the final word. According to The Jakarta Globe, the MK imposed a limit on claims against Lapindo for the 2006 mudflow in East Java. The petition asked the MK to reject a portion of the state budget allowing the Indonesian government to allocate funds to compensate victims. While critics allege that the decision lets Lapindo off the hook, the MK counters that it made clear that Lapindo is still liable for damages within a certain affected area.

Aside from the immediate impact of the opinion, what’s also interesting is the potential effect on Mahfud’s political ambitions. Golkar Chairman Aburizal Bakrie owns Lapindo. Bakrie is also running for president in 2014. Not coincidentally, Bakrie hasn’t be polling well. Is the MK’s decision a peace offering to GOLKAR in case Mahfud wants to get into the race and partner with GOLKAR? Or is it a shot against Bakrie’s candidacy?

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December 27, 2012 · 03:46

Failing judges (Indonesia)

The Judicial Commission announced the results of its review of judicial profession, and its findings are not encouraging. According to The Jakarta Post, 70-80% of judges had not applied judicial procedures properly.

However, the report is a bit confusing in that is critiques judges for applying procedural rather than substantive justice standards. I heard similar complaints from colleagues in Indonesia, particularly when wealthy defendants received light punishments for large crimes and poor defendants were sentences harshly for trivial offenses. Still, it’s not clear how giving judges more discretion under a substantive justice standard ameliorates this problem. If anything, it might increase opportunities for corruption.

The KY also revealed that complaints fell from 1,710 in 2011 to 1,482 in 2012, and that more judges were being punished.

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Filed under ethics, indonesia, judicial commission, judicial reform, legal profession

December 18, 2012 · 04:13

Light on drugs (Indonesia)

Yet another horror story from Indonesia’s judicial system! Justice Ahmad Yamani was fired from the Supreme Court after it was revealed that he conspired with the court registrar to reduce the sentence of a convicted drug trafficker from 15 ears imprisonment to 12.

The Judicial Commission (KY) is now investigating the other two justices who sat on the panel with Yamani, Justices Imron Anwari and Nyak Pha. According to The Jakarta Post, Yamani testified that the reduction in sentence occurred at the instruction of Justice Imron.

While money laundering expert Yenti Ganarsih hopes that the Corruption Eradication Commission can investigate the case in order to uncover the “judicial mafia” that plagues Indonesia’s court system. However, the same The Jakarta Post article also mentions concerns for worry about the political leadership’s commitment to combatting narcotics trafficking. President Yudhoyono has granted clemencies for several drug convicts, suggesting a larger trend.

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December 18, 2012 · 00:39

Favorable ruling re police custody (Myanmar/Burma)

As I’ve noted several times, aside from the Constitutional Tribunal, Myanmar’s judicial system hasn’t become notably more progressive or activist under President Thein Sein’s government. However, the Mayangone Township Court recently issued a decision questioning police brutality. According to a summary from Irrawaddy:

The Asian Human Rights Commission (AHRC) has hailed a Nov. 9 ruling by the Mayangone Township Court that found that the death of a man in police custody had not been natural. AHRC said the ruling, which it recently obtained, could be “a landmark case” as the post-mortem inquest would logically be followed by an investigation into which police officer was responsible for the death. “Very rarely [in Burma] have police officers been held to account for their crimes, and least of all, those committed on persons in custody,” it said. Myo Myint Swe, 19, was arrested for the murder of a woman in June and died in custody in July.

Stay tuned for more about this potentially landmark case.

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December 18, 2012 · 00:33

Is that your final answer? (Myanmar/Burma)

A few weeks ago, the Hluttaw voted to amend the Constitutional Tribunal Law. Unfortunately, I haven’t seen an English-language translation of the changes. Fortunately, we now have an insight into the debates through an op-ed by U Ye Tun, Pyithu Hluttaw MP from the Shan Nationalities Democratic Party for Hsipaw in northern Shan State. Ye Tun wrote in The Myanmar Times explaining his decision to vote against amendments to the Constitutional Tribunal Law.

Ye Tun spells out two complaints. First, the amendments require the Tribunal members to report to the president, Pyithu Hluttaw speaker, and Amyotha Hluttaw speaker about their activities. Ye Tun fears that this would make the Tribunal members responsive to the bodies that appointed them. Rather, Ye Tun would have preferred language simply requiring the members to submit a formal message that would allow the members to keep their distance from the politicians.

Second, Ye Tun worries that the law will undermine the finality of Constitutional Tribunal decisions. The way he interprets the changes, the Tribunal decisions will only be final if they reached the court on appeal from the ordinary courts through § 323 of the Constitution. In other words, cases submitted by the president, speakers, etc. would not constitute the final word on the constitution.
U Ye Tun’s concerns are very real and potentially troubling. If the Constitutional Tribunal’s independence is undermined and the finality of its opinions questioned, then it will not be able to play an impartial adjudicatory role between the branches. Members might be viewed primarily as agents of their appointing bodies rather than as neutral arbiters. In short, as Ye Tun warns, the Tribunal might become more controversial without becoming more effective.

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Filed under Burma, constitution, constitutional tribunal, Myanmar