June 23, 2010 · 03:25

Sex and the Slammer

When Paris Hilton was caught in a sex video, she became a celebrity. In Indonesia, when a video allegedly depicting rock star Nazril “Ariel” Irham, his girlfriend Luna Maya, and another woman thought to be Cut Tari engaged in sexual acts, the former was arrested and the women faced charges under Indonesia’s controversial Anti-Pornography Law. According to the The Jakarta Globe:

National Police spokesman Chief Comr. Marwoto Soeto said that Ariel was charged under Article 4 of the pornography law, which prohibits “producing, creating, reproducing, copying, distributing, broadcasting, importing, exporting, offering, trading, renting or otherwise making available pornography.”

Ariel allegedly filmed the videos. He could face up to 12 years in jail and fines of up to Rp 6 billion…

Asking if Ariel’s female “co-stars” were likely to be charged, the source cited Article 8 of the controversial pornography law, which states “that a person is prohibited from knowingly or consenting to being an object or model for pornographic content.”

The charge carries a penalty of up to 10 years in jail and a fine of up to Rp 5 billion ($555,000).

There is no indication that any of the parties sought or consented to the distribution of the film. This raises crucial issues for Indonesian legal rights. First, while Article 8 of the Anti-Pornography Law adopts a mens rea or intent standard of “knowingly or consenting.” By contrast, Article 4 appears to impose strict liability on the producer or distributor. Because the definition of pornography is so broad, it is sometimes unclear material actually falls within the scope of the law. For example, does the erotic acts sometimes depicted in ancient Hindu art and literature (think the Kama Sutra) constitute pornography? This means that defendants could potentially be charged with violating the act even if they do not realize the material in question was actually pornography.

Stay tuned for more on this case…

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Filed under indonesia, pornography, religion

June 21, 2010 · 20:49

Book Review: Supreme Power










Once again, this isn’t a book that concerns Southeast Asia directly, but does raise a lot of important judicial politics/rule of law questions…

In Supreme Power: Franklin Roosevelt vs. the Supreme Court, Jeff Shesol manages to do something rare: combine excellent research and a gripping narrative. (For those familiar with Rick Perlstein’s Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, I think the writing style and amount of detail are similar). The book deals with Franklin D. Roosevelt’s attempt to pack the Supreme Court with extra justices in 1937 – an attempt that ultimately failed and, unfortunately, few people remember today. Shesol brings this important episode in our history to life. 







First of all, Shesol resists the temptation of many historians to make the past prologue. He doesn’t recite the whole history of the U.S. Supreme Court, nor does he stretch historical analogies to draw “lessons” or “comparisons” for today. Rather, Supreme Power stays focused like a laser on the subject of the book, beginning in 1932 with FDR’s election. This allows Shesol to really delve into detail, spending almost all of the book’s 530 pages on FDR and the court. (Incidentally, if you know absolutely nothing about the Supreme Court or its history, you might want to scan wikipedia quickly before reading this book). 


And the detail in the book is extraordinary. I studied FDR’s court-packing scheme in law school and read the major cases discussed in the book, but I felt I learned much more reading Supreme Power than I did in 3 years of law school. For example, I had read the Schecter case, which invalidated important New Deal legislation, but I did not even know about the businessmen and activists who formed associations, such as the American Liberty League, to launch test cases like Schecter. It turns out the Schecter brothers even voted for FDR in the 1936 elections! Another fascinating trivia bit revealed early in the book is that the whole issue almost became moot because Justices Sutherland and Van Devanter almost retired in 1932 – but refused to do so when Congress lowered their pensions. 


Shesol also strives – and for the most part achieves – the ideal of historical objectivity (pay the reviewer who claims Shesol is sympathetic to FDR no heed). He is quite willing to point out the flaws of the New Deal and the fact that it wasn’t universally popular (raising concerns similar to Amity Shales’ The Forgotten Man). He also seeks to uncover the ulterior motivations of men like Senator Burton K. Wheeler (against court-packing) and Joe Robinson (for). 


However – and this I found remarkable – Shesol also tries to understand the logic and motivations behind the court-packing plan itself. All too often, historians deride the plan as a mistake or doomed to fail. Yet, Shesol shows that the plan did in fact have an organic history and genesis of its own. He discusses the longstanding concern that many observers, including former president and chief justice Taft, had regarding judges over the age of 70. In fact, FDR’s chief foe on the Supreme Court, arch-conservative Justice McReynolds, proposed a similar plan during the Wilson administration. In short, Shesol shows readers the type of information bombarding the White House about elder judges, as well as how FDR and his advisors could convince themselves that adding additional judges for each over the age of 70 was a brilliant solution. My one complaint – and it is a small one – is that Shesol does not seem to make much use of the political science literature about courts and judicial review. This is a shame. I think political science offers many compelling explanations about why elites would oppose limits on judicial review. For example, Tom Ginsburg’s Judicial Review in New Democracies: Constitutional Courts in Asian Cases advances the theory that elites view judicial review as important to protect themselves if they ever become relegated to minority status (for example, Republicans becoming the minority party in Congress). Some of these theories can be found in some form in Supreme Power, but Shesol, who is primarily a historian, primarily credits the political dynamics of the 1930s for defeating FDR’s plan rather than larger political and institutional forces. Supreme Power will probably become the primary account of FDR’s court-packing scheme for some time. Highly recommended for anybody interested in American history or the politics of courts.

For Southeast Asia, perhaps the most glaring absence in the politics of judicial reform is the absence of strong stakeholders. In New Deal America, both elite politicians and tycoons, in the forms of the Republican party and businesses, waged an active campaign on behalf of the Supreme Court’s independence, largely for self-interested reasons. These stakeholders possessed the political power and finances to ultimately defeat FDR’s 1937 court-packing scheme.

By contrast, political and economic elites in Southeast Asia seem, if anything, to benefit from judicial corruption. There could be several reasons for this (the lack of strong parties, weak law enforcement against businesses, politicians beholden to tycoons), but at the end of the day the drive for judicial reform in Southeast Asia seems largely driven by local activists and foreign donors and companies.

Unlike most milestones in judicial independence, FDR’s court-packing scheme is both well-documented and well-understood. This alone makes it worth studying for any student of courts and judicial politics. Jeff Sheshol takes readers into the depths of that battle

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Filed under judicial independence, Supreme Court, USA

June 17, 2010 · 12:25

Book Review: The Judge Judy of Islamic Law

Since 9/11, Islamic law has gained an unfair reputation for being medieval and repressive. Certainly, there are occasional high-profile cases that seem disturbing according to modern notions of human rights (stoning in Iran for instance). Yet, many non-Muslims lack a firm grasp of how Islamic Courts actually operate on a regular basis. In Islamic Modern: Religious Courts and Cultural Politics in Malaysia, Professor Michael Peletz, who conducted fieldwork in Malaysia during the 1980s, provides synopses and transcripts of several cases in the Islamic Court in Rembau. He argues that, far from being repressive, Islamic Courts in fact tend to resemble arbitration and family counseling.

As a record of the types of cases in the docket of the Islamic Court of Rembau, Islamic Modern is invaluable. The book – and Peletz’s commentary – really conveys a sense of how Islamic courts operate on a daily basis. Almost all of the cases dealt with actions for divorce – from the husband who wants a second wife to the wife who abandons her lazy husband. Surprisingly, females were more likely to initiate litigation than males. Indeed, I was surprised how often the Kadi (judge) permitted the wife’s petition for divorce and how often he stressed the husband’s responsibility in marriage. Furthermore, by treating marriage as a contractual obligation between individuals, Peletz argues that Islamic Courts are modernizing Malay identity slowly eroding customary familial and kin linkages (hence the title “Islamic Modern”).

Beyond the actually cases, I found Islamic Modern unfortunately lacking. First, the cases Peletz summarizes deal almost exclusively with divorce. I understand that marital actions probably do comprise a large portion of the docket of most Islamic Courts (as statistics on pages 156-59 suggest). However, it would have been useful to learn more about how Islamic Courts handle other areas of the law – especially because several Malaysian apostasy cases, such as “Lina Joy,” have received so much international attention. In fact, Peletz spends much of the last third of the book discussing gender and homosexuality in Malaysia. This is an important discussion, but seems only tangentially related to the courts.

At the end of the day, Peletz, an anthropologist by training, focuses more on the individual cases and concepts of human culture (he uses the word “symbol” quite a bit). As such, Islamic Modern excels when discussing gender relations, but almost ignores the courts as political institutions. After reading the book, I learned very little about the jurisdiction of these courts, their relationship to the secular courts, or even the tenure of Kadi judges – all of which seem to be hot issues in the field of Shari’ah law in Malaysia. I do hope Peletz’s future research explores these issues in a bit more depth. In the meantime, if you have any interest in Islamic law, I highly suggest reading at least the discussion of the cases in Islamic Modern.

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Filed under gender, Islam, Malaysia

June 16, 2010 · 15:06

The Lighter Side: Too Sexy for my Boss

Before I begin, I’ll just comment that this “Lighter Side” post actually has a serious point – although I hope to make it in a light-hearted way. 
Since I’ve gotten back to the U.S., one frivolous lawsuit has stood head and heels (and other body parts) above the rest. Debrahlee Lorenzana (photo on right), a former Citibank employee, is suing for employment discrimination. She claims that – get this – Citibank executives said she was dressing too sexy and had requested that she “stop wearing turtlenecks, pencil skirts, three inch heels or “fitted” business suits.” When Lorenzana pointed out that other females wore way more revealing clothes, she was told those “women’s shapes were different from mine, and I drew too much attention.”
Of course, rather than go quietly into the dustbin of frivolous lawsuits, this has become a media circus. However – now comes the serious part – this whole incident has challenged my stereotypes of Islamic law. I’ve been reading Michael Peletz’s book Islamic Modern (book review coming shortly), which discusses Shari’ah courts in Malaysia. Of course, for women’s rights activists, Islam’s injunctions that women wear headscarves (hejab), pray behind men, and generally sequester themselves from unfamiliar men* all serve to repress women. However, many Islamic scholars argue that these precepts, far from oppressing women, in fact serve to protect them from men’s weaknesses. 
Reading about Ms. Lorenzana, I couldn’t but help view Citibank’s actions in a similar light. Like those controversial provisions of Shari’ah law, Citibank justified its chastising Ms. Lorenzana as necessary to compensate for the weakness of male employees in the office. Like many rights activists critical of Islam, Ms. Lorenzana argues that she as an individual should be entitled to wear whatever she wishes – within bounds. The major difference is that Islamic injunctions apply to all Muslim women, whereas Citibank directed its criticism solely at Ms. Lorenzana, on the grounds that other women didn’t have the same “shape.” I suspect this distinction will play a critical role in the outcome of the lawsuit. 
Nonetheless, this whole incident forced me consider Islam’s attitude towards women in a different light and made me wonder whether, in different circumstances, high-powered Western businessmen would really be all that different from Muslim clerics (or at least Muslim businessmen)!
* I realize that these are gross generalizations of Islamic law, but do at least describe the perceptions of many non-Muslims.

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Filed under United States

June 12, 2010 · 15:56

Book Review: Towards Juristocracy

I’m back from Asia! I’ll have more pictures on my photo website soon. In the meantime, here is a short book review of a book I finished on my flight:

In Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Hirscl tries to explain not just why countries adopt judicial review, but also when. This is important, because a sufficient theory about the adoption of judicial review must account for the timing. As such, he selects three countries (Canada, New Zealand, and Israel) that did not undergo an obvious political revolution or regime change at the time of their constitutionalisation (a fourth, South Africa, fits the more common pattern of constitutionalism following a democratic transition).
 Hirschl’s thesis – the hegemonic preservation theory – is that political, economic, and judicial elites adopt constitutional review in order to preserve their (often neoliberal) policy preferences in the face of mounting opposition. He analyzes the history of constitutionalisation in his sample countries and shows how changing political and demographic domestic trends, such as immigration, threatened the policies of current elites. He also scrutinizes court opinions, particularly on criminal procedure, privacy, and socio-economic rights, to show how they better match elite neoliberal policy preferences than notions of “progressive” jurisprudence.

I found the hegemonic preservation theory compelling, but felt Towards Juristocracy left a few questions open. First, it does not explain variations between elite policy preferences and the final outcome of constitutions. For example, the Canadian Charter does not provide strong protection for property rights, a key element of neoliberal thought. Likewise, the South African Supreme Court has adjudicated socio-economic rights, albeit to a limited degree. To what extent do the negotiations and power dynamics amongst elites and rising political forces affect hegemonic preservation theory? Is there a theory to predict how much of the elite’s preferences will be preserved through the process of constitutionalization?

This is a good book to read alongside Tom Ginsburg Judicial Review in New Democracies: Constitutional Courts in Asian Cases. It provides plenty to ponder. I’d be interested in more studies of hegemonic preservation theory in developing countries outside the commonwealth/British legal family.

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Filed under constitutional review, Ran Hirschl