May 24, 2010 · 11:51

Newmont – and one of my old law review articles – vindicated

A couple of years ago, I wrote an article in the Georgetown International Environmental Law Review about the Indonesian government’s prosecution of Newmont Mining Corporation for pollution in Buyat Bay. In the article (which you can download here), I discussed the court’s use of scientific evidence and conclude that the judges got it right in acquitting the company. The judges detailed the scientific evidence, presented evidence from both sides, and accepted the evidence that had the most credibility (and the prosecution’s evidence suffered severe credibility problems). However, my background in environmental sciences is minimal, so I had to trust the scientific conclusions of others.

Fortunately, a new report by Indonesian and Australian scientists has reaffirmed the court’s verdict. According to Asia Sentinel, the authors concluded that arsenic and mercury standards in the bay did not exceed Indonesian or international standards. Moreover, they state:

“We also compared fish captured within 10 kilometers of the area with those captured in other coastal areas, and their heavy metal contents were also very low,” Amin Soebandrio, a scientist from the University of Indonesia, told reporters.

However, not all environmentalists are buying the reports conclusions:

“We proposed for them to check on the impact on fish by breeding them on site. We also asked them to examine cells on the algae, but not one of our considerations was included,” said Rignolda Djamaluddin, director of Manado-based Kelola Foundation, who has participated in the Buyat research since the beginning. “They also did not include the impact on the ground, whether the pollution had reached people’s wells to cause so many diseases.”

The report’s authors responded that, if the oceans did not have increased levels of pollutants, then wells would certainly not, given that they’re generally far inland. 

The central problem is that neither side has much faith in the Indonesian court system. Environmentalists view them as subject to corruption and capture. Denise Leith wrote a fascinating book about another mining company, Freeport, and its misdeeds in Indonesia. For Newmont, the judiciary’s horrible reputation reduces the value of any court verdict – which is one reason why yet another scientific report was needed to confirm the court’s acquittal of Newmont. The optimist in me hopes this dynamic will produce a coalition in favor of judicial reform – one in which defendants and plaintiffs both realize that a clean judicial verdict comes with authority and is worth more than one obtained through corruption. Alas, I don’t think domestic companies will face the same pressures and public relations nightmare as Newmont – especially because they, unlike Newmont, face lower risks in engaging in corruption (such as the U.S. Foreign Corrupt Practices Act) and are more familiar with the local context (such as knowing which judges owe which companies favors).

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Filed under environmental, indonesia, Newmont

May 19, 2010 · 11:54

Book Review: Stormier than Fiction

I’ve published a book review of Emma Larkin’s new book, Everything is Broken, in Irrawaddy. I highly recommend both this book and Larkin’s previous book, Finding George Orwell in Burma.

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Filed under Burma, Cyclone Nargis, Myanmar

May 18, 2010 · 19:32

Gender Bender in Indonesia

In all the months I’ve been blogging on Rule by Hukum, this is perhaps the worst violation of justice that I’ve seen. An Indonesian, Alterina Hofan, has Klinefelter’s Syndrome, which results in an extra X chromosome and a more feminine physical appearence. Indeed, when he was born, he was registered as a female. However, he had always identified himself as a man. Later in life, he underwent surgery to remove some of his more feminine features and changed his identity papers.

When Mr. Hofan married a woman in 2008, his mother in law filed a case against him, alleging he had falsified his identity documents. Mr. Hofan was arrested and initially placed in the male’s ward of the prison. However, after police DNA tests, he was placed in the female ward. Upon yet further reflection, the prison staff decided he was male and could not be held amongst other female prisoners. Therefore, Mr. Hofan remains in a private jail cell in the female section of the prison.
Fortunately, the case has received a lot of publicity. According to The Jakarta Post, Josep Adi Prasetyo of the National Commision on Human Rights (Komnas HAM) denounced the decision, saying Mr. Hofan “has the right to say he is a man.” Siti Hidayati Amal, an Indonesian sociologist, says the case shows that “there is still an apparent lack of awareness among the authorities, especially the police, on how to handle this specific issue.” 
I’ve occasionally said on this blog that bad facts make bad law (or the inverse). Mr. Hofan’s case could well be one in which good facts make good law. While the case hasn’t yet (and might not) gone to court, if it does reach, say the Mahkamah Konstitusi, it could lead to a decision in favor of at least limited LGTB rights. How so? Mr. Hofan’s plight is extremely sympathetic. He did not choose to be transgendered, but rather suffered from a genetic disease. He has been consistent in staking his identity as a man. The government’s handling of Mr. Hofan seems inept at best, and verging on callous. Perhaps most importantly, given that this is nominally a marriage fraud case, Mr. Hofan’s wife has stated that she does not care about her husband’s gender past. She has told the media, “All I want is for my husband to be freed as soon as possible.” These aren’t the type of facts that would arouse the ire of most people, even religious fundamentalists opposed to LGBT rights. I won’t be so bold as to predict the outcome of any litigation, but it seems to me that Article 28I of the Constitution would provide several grounds for releasing Mr. Hofan. 
Hopefully Mr. Hofan will receive justice sooner rather than later, but if his case does go through litigation, it could lead to profound developments in Indonesian LGBT law. 

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Filed under gender, indonesia

May 12, 2010 · 14:07

Aquino and Corona win

Just a few updates on the Philippines. First of all, Aquino won a (by Filipino standards) resounding majority in the election for president. As you recall, Aquino has made some interesting pledges regarding judicial reform and impeaching Supreme Court justices. It remains to be seen whether he will follow through.

On another note, Justice Corona was selected as the new Chief Justice. Not a huge surprise. Corona is widely seen as an Arroyo ally, more so than other Arroyo appointees. However, the administration’s endorsement seemed a bit lukewarm, almost as if he were simply the next justice in line:

“Considering that he has been nominated by the JBC, he happens to be the most senior. And nobody I think can question this announcement and his eventual appointment,” Raul Victorino, chief presidential legal counsel, said of Corona’s appointment at a Malacañang news briefing.

Certainly a contrast to Obama’s announcement that he would nominate Elena Kagan for the U.S. Supreme Court. I’ll talk more about Corona later when I write a book review about Shadow of Doubt. We’ll see if Aquino accepts or fights that appointment.

Oh, and Arroyo won’t be going away anytime soon. She won election as a congresswoman and is tipped to become speaker of the House.

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Filed under Aquino, Philippines, Supreme Court

May 6, 2010 · 14:31

Just when you thought the Supreme Court was in the tank for Arroyo

I’ve been blogging the past few weeks about the various controversies involving the Philippine Supreme Court, especially its “pro-Arroyo” decision to allow the president to appoint the next chief justice.

However, the court just came out with an opinion that favors the Liberal Party, the party of frontrunner presidential candidate Aquino and critic of Arroyo (his main campaign tactic has been to criticize his opponents of having Arroyo’s blessing). The court overturned a merger of two other parties, the National People’s Coalition and Nationalista Party that would have marginalized the LP. The main reason for the decision appears to be that the two parties missed the deadline for merger. However, according to comments by LP politicians reported in the Philippine Inquirer, the questionable nature of the merger may have played a role:

Quoting from the dissenting opinion of Comelec Commissioner Rene Sarmiento, the LP insisted that the NP-NPC merger was a “sham, highly dubious and shameless.”

The LP said that even NPC chairman Faustino Dy Jr., who signed the resolution for the NP-NPC alliance for the NPC, admitted under oath that the coalition was neither approved nor ratified by the NPC National Convention, the party’s highest policy-making body, as provided in the party’s Constitution and By-Laws.

Weak facts make weak legal arguments, and it appears this was a very suspicious set of facts. Keep in mind, the NPC and NP are ideological opposites – the former is leftwing, the latter conservative – so they probably received little sympathy from the justices. More interesting will be seeing how Aquino treats the court if he becomes president, given this ruling in his favor.

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Filed under Philippines, Supreme Court