The father-in-law of slain JI terrorist Noordin Top, Baharudin Latif alias Baridi, is going on trial soon for hiding his Noordin. This raises an interesting point. Indonesia has won plaudits for its handling of terrorism cases through police actions and relatively fair and competent trials in the judiciary. In fact, at a CSIS event yesterday, International Crisis Group Southeast Asia Director Jim Della-Giacoma said the judiciary operated better in these types of cases than it usually does and suggested it could be a model for further judicial reforms in the country. (This is the stark opposite from the U.S., where our terror trials have been roundly criticized). Can Indonesia and the rule of law programs there find a way to operationalize the lessons from the terror trials to reform the entire judiciary? Or are the problems simply too different?
Category Archives: indonesia
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
Newmont – and one of my old law review articles – vindicated
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 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
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.
Blasphemous Constitutionalism
Indonesia’s Mahkamah Konstitusi just decided in an 8-1 decision that the country’s 1965 Blasphemy Law does not violate the Constitution. While the law recognizes the six major world religions (Islam, Catholicism and Protestantism, Hinduism, Buddhism, and Confucianism), some worry that it hinders minor sects and tribal religions by punishing deviations from mainstream teachings. The case arose when a group of NGOs challenged the law, partially concerned about the treatment of Muslim minority sects such as Ahmadiyah.
According to Human Rights Watch Deputy Asia Director Elaine Pearson:
The Constitutional Court’s decision on the blasphemy law poses a real threat to the beliefs of Indonesia’s religious minorities… If President Yudhoyono is serious about promoting religious pluralism in Indonesia, he should work to have this law and others like it taken off the books.
Interestingly, while the court and government agreed that religion was a private affair, they justified the law as protective of religious minorities:
Top government officials who served as witnesses in the court’s examination, Suryadharma Ali, minister of religious affairs, and Patrialis Akbar, minister for law and human rights, both argued in favor of the constitutionality of the law, saying that if it were overturned, violent mobs would probably attack religious minorities.
In somewhat Orwellian logic, they argued that the law placates the majority of the country (mainstream Muslims) by banning religious minority deviations so that those deviations do not arouse the majority into attacking the minority… In essence, if something’s outlawed, it won’t be a target for vigilantes.
While the Mahkamah Konstitusi as an institution represents a major step forward for Indonesia’s democratization process, in a way this result shouldn’t be too surprising. The court, as currently structured, seems designed to uphold majoritarian policy preferences. The justices only have five-year terms on the court, so the DPR and president can appoint judges who appoint their views pretty regularly. Any justice that strays too far from the popularly elected majority can be replaced soon enough.
Indeed, former Chief Justice Jimly Asshidiqie, who is often credited with some of the court’s boldest decisions during its first term, was not reappointed last year. While the Mahkamah Konstitusi gained a reputation in some quarters as willing to strike down DPR laws (especially when they violated Article 33 of the Constitution). However, it is unclear whether that will still hold true without Jimly Asshidiqie. I suspect that in the future the court will act much more like a majoritarian institution, rather than as a protector of minority interests.
For more on the role of Islam in Indonesian constitutional law, check out this book by Nadirsyah Hosen.
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Filed under indonesia, Mahkamah Konstitusi, religion
Dominic J. Nardi, Jr. 
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