The RAB Experience

More Australian Humour...

2009-07-08T19:57:00.003+07:00

Q: If a magician's wand is used for cunning stunts, then what is a police officer's baton used for?
A: [use your powers of deduction on this one]

Q: What happens to a lawyer who jumps out of an airplane at 35,000ft without a parachute?
A: Who cares!

Q: How many racists does it take to change a light bulb?
A: None - because racists hate being enlightened.

Presidential Election -- Indonesia

2009-07-08T17:09:00.005+07:00

The "Quick Count" numbers are suggesting that the ticket of the incumbent president, Susilo Bambang Yudhoyono, and his running mate, Boediono, are going to win the election outright. The current numbers suggest that a September 2009 run-off will not be necessary.

The Indonesian Survey Institute (Lembaga Survei Indonesia / LSI) has SBY / Boediono running at 60.25%. Megawati / Prabowo are trailing in a distant second on 27.44%, and the incumbent vice president, Kalla, and his running mate, Wiranto, are trailing in a very distant third with a mere 12.31% (as of 17.20 Indonesian West Time). The other survey agencies are indicating that they have similar numbers based on their respective polling.

The site "Indonesia Memilih", as produced by Kompas has lots of good coverage and continual Quick Count updates. It is in Indonesian, but the Quick Count numbers are easy enough to follow for those with an interest in this presidential election but limited or no Indonesian language skills.

In many ways I am glad that I did not have a right to vote in the Indonesian Presidential Election. There was not a pair of candidates that I could have voted for and then walked out of the polling booth feeling comfortable with what I had done. I would have had to go home and take a shower and hope that karma forgave me in the long run.

I am someone who believes that if you have a right to vote, and you can exercise that right to vote then you must do so. In the Indonesian case, where so many have sacrificed so much to gain this right, then there is an even greater obligation to exercise that right. There has in the modern era been a movement in Indonesia to exercise the democratic right not to vote. This movement is known as "golput" or golongan putih, the white group. The idea is that if one refuses to vote this is the best way of expressing one's displeasure at the lack of viable choices to choose between.

I would have voted, if I had the right to do so, and marked my ballot in such a way that it was invalid. I would have exercised my right to vote and would have expressed my inability to choose any of the candidates as they are all as poor as each other in terms of ability.

That's just me. And, no one else is me. To each their own. I respect other people's right to express their displeasure by exercising their democratic right not to vote. I would hope that in similar circumstances those people would also respect my right to vote in the way that I choose.

Someone has to win this thing, and with world renowned abusers of human rights on each of the other tickets, the process of elimination leaves the ticket of SBY / Boediono. Unfortunately, during his first five years in the job SBY has not shown himself to be particularly adept at resolving the critical issues facing Indonesia in the short, medium, and long terms.

Nevertheless, Viva Democracy!

Alcohol in Indonesia

2009-07-08T00:31:00.004+07:00

Indonesia is the world's sixth largest importer of alcohol. This is pretty impressive for a country that despite its claims of being a moderate secular society still frowns on alcohol consumption.

In light of the fact of the potential for growth in the alcoholic beverages market in Indonesia were the government to free up controls on both local and foreign investment in the sector, the likelihood of this happening seems remote, actually very remote.

Investment in the alcohol sector is strictly regulated. In fact, investment in this sector is "closed "according to the negative investment list. Closed simply means that there is to be no investment into the sector because it is a sector that is deemed to be detrimental to the development and harmony of the Indonesian community.

Yet, considering the amount of alcohol imported, there would seem to be some good arguments for allowing the development of the sector so that the amount of imported alcohol could be reduced over time and replaced by locally produced alcohol.

The Indonesian Chamber of Commerce and Industry (Kadin) is advocating and lobbying for the government to lift the restrictions on investment. This is not going to be successful! There is no political expediency in the move for the government and there is nothing to be gained by the government entertaining the move. However, it is worth noting that investment in the sector would undoubtedly create jobs for Indonesians. Whether or not this balances out the perceived social ills that alcohol brings is a matter for further debate, so it seems.

In the meantime Indonesians and visitors alike will get to watch the destruction of much of the illegal alcohol that finds its way into the Republic like in the photo above.

Gratuitous Postings -- Hayden Panettiere -- Heroes

2009-07-08T00:05:00.010+07:00

I must confess that this post, photo, and the associated tags are a means of testing whether or not a gratuitous posting of a young woman in a sexy sheer lace dress can cause a spike in my visitor statistics. I will let you know how that goes.

Sad but true :D

Hayden Panettiere is known for her role in "Heroes". However, she has crossed over into the big screen format as well. This picture is from a promotional trip she took to the Late Show with David Letterman for "I Love You Beth Cooper".

The other thing that Panettiere is known for is her ink, particularly a misspelled tattoo. There is a photo of that here.

Happy Belated 4th of July...

2009-07-07T23:50:00.005+07:00

Some things just tend to slip your mind, and for me the recent passing of the US Independence Day was one of them. It is a good thing that I am Australian, so I should not be punished too much for my indiscretion.

Anyways, thinking about the flag and apple pie and all that stuff, got me to thinking that I should post this picture from the album cover of Amorica by the Black Crowes. The album was released in 1994 and garnered a little controversy as a consequence of the cover art. I am guessing that the pubic hair was probably a little too confronting for some.

Happy Independence Day!

Manohara Odelia Pinot -- Part XIII -- Daisy Fajarina as the "Evil Mother"

2009-07-07T20:58:00.006+07:00

The saga continues. It is somewhat addictive for me as there is just so much to process and analyze from a legal standpoint. It seems that the Malaysian press is coming up with the far juicer pieces for the gossip columns. The following piece is based on an article from the Malay Mail.

George Manz is Manohara's biological father. He is a engineer that was formerly based in Indonesia. He met Daisy while he was in Jakarta in 1989, presumably fell in love, and the rest is history as they say. Mano, as she is affectionately known, was born in 1992. Not long after this things apparently went wrong fast and Manz claims that Daisy stole his daughter away from him. He also claims that Daisy is a proponent of black magic and has an evil hold over his daughter.

According to Manz, the black magic proof is in an x-ray of Mano's mouth. It is claimed that on a visit to a dentist an x-ray was taken and this x-ray showed gold needles and diamonds embedded in Mano's chin. I do not know how this proves black magic is in play. It would seem to make more sense that Mano was about to become a mule in a smuggling operation.

Nevertheless, the black magic claims aside, Manz has agreed to help the prince in his fight against the evil one, aka Daisy Fajarina. Manz sent a letter to the prince outlining his desire to help, his belief that the prince can save Mano from Daisy's evil influence, and sent documents that he believes might assist in the fight.

The whole affair is about to get a whole lot more interesting in a legal sense as Manz is threatening to get the US State Department (some Hillary Clinton involvement?) involved, Mano is a US citizen, and it would seem that the basis of the pursuit might be some form of international child kidnapping scenario.

However, it is a little late one would have thought for Manz to be coming forward now, particularly when he says that he has been following the case from afar with the help of friends in Singapore and Jakarta.

Another aspect of the case which has had some coverage in Indonesia is the legal problems that Daisy has herself and the outstanding Interpol Red Notice that requires local police agencies to facilitate the apprehension of her. Indonesia has an Interpol liaison office.

The allegations against Daisy are that she facilitated the sexual abuse of a domestic servant, who was also legally her step-daughter, by her second husband, Juergen Reiner Noack Pinot. The allegations or rape, including forcible masturbation, were subsequently proved and Pinot served jail time. Not much it seems considering he was out in four months. For her part in the whole abuse scandal, Daisy was sentenced to 18 months in prison. Daisy has yet to serve a day of that sentence and that is why the French have sort the red notice.

It would seem that Daisy knows a lot about the sexual abuse of young and vulnerable women having participated in the perpetration of such abuse herself. If she is really so shocked and abhorred by such conduct then she must show that she has the courage of those convictions and return to France and face the legal music there.

I am sure the symphony that is planned for her on her eventual return is going to be far from the sweet music she thinks she might be able to enjoy in Jakarta.

Extradition treaty or not with France, Indonesia must show that it is committed to the elimination of all violence against women, even where this violence is perpetrated by women against other women.

Simply, Indonesia must comply with the red notice and facilitate the detention of Daisy Fajarina and allow her to be returned to France. The only way that this should not happen is if Daisy can show, and prove, that the process against her was fatally flawed and that the sentence imposed upon her was legally wrong.

As much as I might feel for Mano's plight with respect to the allegations she has made against the prince, and even if the allegations are true, this cannot and must not become a get out of jail free card for her mother.

Simply, Daisy Fajarina is not a victim here. If anyone is a victim then Mano is, assuming that the allegations can be made out. And, to date, they have not been made out. The truth is that Daisy is the perpetrator of some serious crimes of violence against another woman for which she has not paid the price.

The "10-Pound Pom" Returns...

2009-07-07T18:47:00.004+07:00

I have always thought the term was "10-quidder". My old man was a 10-quidder. What his motivations or reasons might have been in deciding to pack it all up in his homeland and head to the land downunder are irrelevant, but the rest, as they say, is history.

The original scheme was one adopted as a means of "encouraging" migrants from the United Kingdom to take a punt on heading to Australia in the period after the Second World War. And, the scheme ran through until the 1960s when my old fella made the fateful decision. A decision, I am sure, that he does not regret.

Ten quid at this point in time is the equivalent of about AUD 21. To qualify a person wanting to purchase a ticket must have a valid working visa in order to be able to work in Australia, and be willing to fly Qantas. The idea is that this is a way of boosting tourism to, and then within, Australia. I am not so sure that it will considering there are only 150 of these 10-quid tickets available on a first in, first served basis.

The tickers will be sold from STA Travel centers throughout the UK from 5 August 2009. However, seeing there are only 150 tickets available, they are not expected to last long. The expectation is the tickets will only last a few hours before being sold out. I am guessing that with some 35,000 Poms expected to gain working holiday visas that 150 tickets might only last a matter of minutes.

There are some additional conditions besides the visa one. Particularly, travel can only occur between 15 August 2009 through 30 September 2009 and 1 November through 30 November 2009. And, travelers can fly into Sydney, Melbourne, Perth, Adelaide, and Brisbane.

Those that miss out on the 10-quid tickets will get the next best Qantas special which is STG 679 of the equivalent of about AUD 1,400.

For anyone reading this in the UK and who has a valid working holiday visa and is yet to get a ticket to travel, then this might be the perfect opportunity to camp out and get a super cheap flight on Qantas to the land downunder and get your working holiday underway.

For anyone interested in learning more, there is a website, see www.statravel.co.uk/10poundpom.

Ryanair and Vertical Seating

2009-07-07T16:21:00.008+07:00

Ryanair are the masters of self-promotion and generating publicity. This is irrespective of whether it is a raunchy calendar of barely clad female cabin staff or suggesting that it is time for pay-as-you-use toilets on aircraft.

So, in keeping true to form, Ryanair has indicated that it is in talks with Boeing about modifying some of its future aircraft orders to incorporate the concept of "vertical seating". To the rest of us this will become known as the standing section of the plane.

Ryanair is Europe's leading budget carrier. So, in that sense the idea makes sense. Standing room only should to all intents and purposes let them cram more people onto a plane and therefore improve profits.

The idea of vertical seating is that there will be a pole or some kind of small stool to lean against according to Stephen McNamara, Ryanair's spokesperson on this one. However, the reality is that it is likely to be more of a standing position than a sitting one.

On short haul flights, this is probably an interesting avenue to explore. Nevertheless, it would seem that the whole rationale of this idea would be that buying a standing room only ticket would have to be cheaper than a traditional seat. If it is not, then why bother to pay the same or more to stand?

I wonder what is next on the Ryanair cost-cutting agenda?

But, for now, it is "Ladies and Gentlemen, we will soon be landing at Birmingham Airport, please return to your standing positions and fasten your standing belts, thank you! And, thank you for flying with Ryanair!"

Manohara Odelia Pinot -- Part XII -- Indonesian Embassy in KL Strikes Back

2009-07-07T10:45:00.006+07:00

The Manohara (photo) saga continues. For more on this case as written by yours truly, look here.

If the issues in this case, specifically the allegations of rape and abuse, were not so serious then this case would almost be fun to watch. Manohara and her mother, Daisy Fajarina, have been vocal in making claims against just about everyone who they feel have slighted them in some way in this whole affair. The Indonesian Embassy in Kuala Lumpur was no exception.

Mano, as she is now know affectionately, and her mother, have suggested that the Indonesia Embassy deliberately thwarted any attempts to deal with the matter and in fact was pro-active in keeping Mano in Malaysia because they had been bribed by the Kelantan Royal family.

This piece is not about whether the claims are true or false per se, but rather about the legal implications of making them. And, then failing to produce any evidence in support of those claims. It would not be a first for an Indonesian Embassy and the officials that work within to be accused of corruption and to have that proved. However, in the cases where the allegations were made, subsequent evidence was furnished in order to establish guilt, and then convictions were obtained.

The Indonesian Embassy in Malaysia has laid out in chronological order all of the efforts that they undertook with respect to the Mano case. Could they have done more? Perhaps. However, the claim was that they did not do enough. Therefore, this raises the important question of, "legally how much does an Embassy have to in order to protect its citizens who get into trouble abroad, either legal or personal?"

The Indonesian Embassy in Kuala Lumpur has also indicated that it is intending to sue Mano and her mother if the pair of them cannot come up with evidence to prove their claims. It would be interesting to see how the presidential candidates respond to the Indonesian Embassy threatening a victim of alleged domestic violence in this way. Interesting in the sense of whether they jump on board like they did in the Prita Mulyasari defamation case or just try and avoid it like the plague.

Although, the incumbent president has had a say on the matter here (in Indonesian). Nevertheless, it was pretty much run of the mill stuff. Generally, "this is a serious matter"; "better that Manohara talks to the Minister of Foreign Affairs"; and, "I have instructed the ambassador in Malaysia to watch the developments in this case closely."

Kompas has a detailed account of the chronology of events here (in Indonesian).

My personal opinion is that the burden of proof lies with those making the allegations. In this case the burden of proof in terms of proving the two primary allegations, namely: the Embassy did not do enough and that it accepted bribes, lies with Mano and her mother. If they fail to do so, and if one truly believes in the idea that all are equal in the eyes of the law, then Mano and her mother must be subject to the prevailing laws and regulations governing their conduct.

Despite the threats, the Indonesian Embassy in Kuala Lumpur has expressed their desire to facilitate any action that Mano and her mother want to take in Malaysia.

A simple defense is truth. Hopefully, Mano and her mother have truth on their side and can prove it.

Australian Humour...

2009-07-06T19:54:00.004+07:00

The worst things about being an egg are:

1. You only get laid once;
2. You come in a box with eleven other blokes; and,
3. Only your mother ever sits on your face!

A Nun and A Blind Man...

2009-07-06T19:19:00.003+07:00

A nun is in the shower when there is a loud knock on the door to the convent. All the other nuns are working out in the back garden and cannot hear the knocking.

So, the showering nun calls out, "who is it?"

To which the following reply comes, "I am the blind man from town."

The nun runs down the stairs naked to open the door.

"Great tits", says the man. And then proceeds to say, "So, where do you want these blinds?"

Thought I would share this little piece of Australian humour.

Bogor -- Halal City

2009-07-03T15:18:00.005+07:00

The Bogor government has declared its intention of becoming a halal city. Halal in this case means that there is to be no government services with respect to the slaughtering of pigs (photo). However, if private citizens of Bogor want to slaughter pigs and they have their own tools of the trade, then they are going to be permitted to do so.

I wonder if just by the government stopping the slaughter of pigs is enough to make Bogor a halal city? The last time I was in Bogor there were a few other things that might be considered to be decidedly non-halal, like alcohol and prostitution.

I never went to Bogor for a good feed of pig meat anyways. If I went to Bogor and it was not for work-related reasons, then it was to visit the botanical gardens and the weekend retreat of the President. However, when one considers the huge influx of Jakartans to Bogor on the weekend, then it was usually better to stay in Jakarta and enjoy the relative freedom of movement.

Revisiting the 2009 Jessup Competition...

2009-07-01T23:59:00.007+07:00

The 2009 Philip C. Jessup International Law Moot Competition was a lot of fun. The competition also highlights the incredible advocacy talents that are out there in the world. The future of international law looks very sound to me.

The Final Round was between the Universidad de los Andes, Colombia vs. University College London, United Kingdom. The case was, The Case Concerning "Operation Provide Shelter". The competition is run by the International Law Students Association. The competition continues to grow every year and this means that the competition gets tougher every year.

I am proud of the students that I worked with (coached) in this competition.

Here is a short clip of the Final Round.

Ambrose Bierce...

2009-07-01T18:57:00.002+07:00

ALLIANCE. n. In international politics, the union of two thieves who have their hands so deeply inserted in each other's pocket that they cannot separately plunder a third.

The Cynic's Word Book (1906) p. 16

HISTORY. n. An account, mostly false, of events, mostly unimportant, which are brought about by rulers, mostly knaves, and soldiers, mostly fools.

The Cynic's Word Book (1906) p. 161

PEACE. n. In international affairs, a period of cheating between two periods of fighting.

The Devil's Dictionary (1911) p. 248

PREJUDICE. n. A vagrant opinion without visible means of support.

The Devil's Dictionary (1911) p. 264

SAINT. n. A dead sinner revised and edited.

The Devil's Dictionary (1911) p. 306

Ambrose Bierce (1842 - c. 1914)

Sri Mulyani Indrawti -- Governor of the Indonesian Central Bank?

2009-06-30T18:38:00.004+07:00

Politics in Indonesia is a strange animal and even stranger are the motivations of those that play. The latest rumor or perhaps a little more than rumor now that the incumbent president, Susilo Bambang Yudhoyono or SBY to his friends, has said that he is considering it, is the selection of Sri Mulyani Indrawati (photo) as the prospective Governor of Bank Indonesia (Indonesia's Central Bank).

Sri Mulyani is one of SBY's best performing Ministers, if not his best performing Minister. She holds the Finance Portfolio and since the former Coordinating Minister of Economic Affairs, Boediono, was appointed to Bank Indonesia, she has held that portfolio as well.

She is a world class reformer and has made significant inroads into reforming the bureaucracy. She is generally considered to have been successful in her role and been a driving force in cleaning up her department.

Why is it that her appointment to Bank Indonesia is problematic when Bank Indonesia is also an institution that could benefit from her reforming ways? Well, the move reeks of marginalizing the competition and a real shaker and mover on the agenda of reform. A move to Bank Indonesia takes Sri Mulyani out of the majority of the policy areas that she has been so intimate and successful in to date. Almost certainly leading to a waning of her influence in real and broad reforms.

The move is a backward step for those interested in the bureaucratic reform of government. This is not to say that there are not worthy candidates to replace her, there are. This is a backward step because whoever replaces her would have to work twice as hard to develop the gravitas she has acquired during her time in the position. If SBY, and Boediono, are serious then the most sensible move would be, assuming SBY and Boediono win the presidency and vice-presidency, is to make Sri Mulyani the Coordinating Minister of Economic Affairs in the next SBY Government.

There is little doubt that Sri Mulyani would be appointed to the position of Governor of Bank Indonesia if she were proposed as a candidate. Her confirmation through the Indonesian House of Representatives (DPR) would not likely encounter much resistance, if any.

Swine Flu, Tourists, Face Masks, and Indonesia

2009-06-30T17:08:00.006+07:00

The Minister of Health (and Conspiracy Theories and Other Crazy Ideas) has decided that all tourists from swine flu affected countries must where face masks for the first three days after their arrival in Indonesia. It seems that the fact that 50% of the eight cases of swine flu or the A(H1N1) virus confirmed in Indonesia has tipped the scales in favour of all foreigners from all swine flu affected countries being required to don the face masks. This is presumably even the case if the incoming tourist successfully negotiates the thermal scanner (photo).

According to the Minister, this is a precautionary measure in order to prevent human-to-human transmission. Yep, I can see it now, the tourists from swine flu affected countries in the late night entertainment areas of Legian and Kuta painting the town red in their designer face masks. The question though is really one of enforcement. And, as the Minister of Conspiracy Theories points out, it is going to be a little hard to enforce the requirement for people wanting to go swimming, or perhaps eating, or drinking, or myriad of other pursuits that would undoubtedly be hampered by the mask.

The government recognizes that if it were to jump up and down in order to show that it was serious about this, then there could be a spanner thrown into the works of the slow but sure recovery of the tourism industry in places like Bali. Hence, there is no penalty if people choose not to wear the mask after they are given it at the airport.

This begs the question, "Why bother?"

This is especially so when the new "policy" is still unfunded and the Department of Health is still trying to ascertain where the funds are coming from to buy the masks that are going to be handed out for free. The true Indonesian entrepreneurial spirit would have been to tag an extra USD 5 on each visa on arrival to cover the cost of the mask. Let's face it, it is still cheaper to pay the fiver than it is to stand on principle and turn around and board the next flight back to wherever it is that you came from.

This brilliant policy initiative came out of a meeting chaired by the Coordinating Minister of His Own Family's Welfare (oops Peoples' Welfare), Aburizal Bakrie, who said the funds would be made available for the purchase of the masks.

This also begs a question, "Aren't there more important matters that require immediate funding?" It also possibly begs a second question, "When does the Minister think that his family companies and the government will get around to finalizing the Lapindo matter, particularly the outstanding payments to those affected by that disaster?"

Funnily enough, the Health Minister has indicated that she is particularly concerned by the huge numbers of Australian tourists that invade Bali annually. I noted in my previous post on swine flu that it was a perfect scenario for the doomsdayers, conspiracy theorists, and Commission I of the DPR to ratchet up the idea that swine flu was another attempt by foreigners to covertly usurp Indonesian sovereignty through the spread of disease.

This really is a case for the "Why Bother?" files. It is such a waste of money, particularly when the money can be better spent elsewhere.

Michael Jackson -- No Rest in Peace, Yet...

2009-06-30T01:53:00.006+07:00

How messy is the carve up of the legacy of Michael Jackson going to be?

News starting to circulate includes a leaked autopsy report that suggests Jackson was nothing more than a skeleton whose stomach contents contained nothing more than pills. The rest of the autopsy report suggests that Jackson was bald, his body was riddled with needle marks from painkilling injections, and that his body bore the scars of at least 13 cosmetic operations.

The past few days have also seen Jackson's former wife, Deborah Rowe, and at one time mother of his children, Prince and Paris, come out with a statement that the children are not even his. The story being that she was artificially inseminated by an unknown donor.

You have to feel for the kids.

This is undoubtedly just the tip of the iceberg.

Manohara Odelia Pinot -- Part XI --The Kelantan Palace Comments

2009-06-30T00:40:00.006+07:00

The Kelantan Palace has finally issued an official comment to Bernama that the marriage problems and legal issues surrounding the marriage of Tengku Temenggong Muhammad Fakhry and Manohara Odelia Pinot (photo) are personal matters.

This is indeed true. Nevertheless, the are also public matters. The physical abuse of a spouse is not a personal matter, but a criminal one. It is also fair to say that there is little doubt that there are some ramifications for the palace if there is an investigation going forward because the prince is not the only one named in the criminal complaint.

This case has certainly faded from the public consciousness, I guess the death of Michael Jackson will do that, however the issues still remain unresolved.

Oh well, life goes on for the rest of us.

BlackBerry In Indonesia

2009-06-30T00:13:00.003+07:00

This is something that was written in conjunction with a work colleague and has been published at the English language version of hukumonline.

Research In Motion (RIM), the Canadian company that developed the BlackBerry smartphone, has been informed by the Department of Communication and Information that any new handsets released will not be permitted as imports to Indonesia or approved for sale. This ban has been in place since 2 June 2009.

This decision was issued through the press release of the Department of Communication and Information, namely: No. 123/PIH/KOMINFO/6/2009. It must be noted that existing BlackBerry smartphones and stocks remain legal and the government has explicitly stated that it does not intend to ban existing BlackBerry services.

The basic premise of the prohibition is simply that RIM has not established any after sales service center for BlackBerry owners in Indonesia. It is estimated that there are some one million BlackBerry users in Indonesia. The establishment of an after sales service center is mandated in the Minister of Communication and Information Regulation No. 29/PER/M.KOMINFO/09/2008 on Certification of Telecommunication Tools and Equipment.

Therefore, any failure to comply with the after sales requirement permits the Department to reject any application submitted by the product owner. In essence, this is what the Department has done; it has simply rejected all RIM requests for departmental approval for new BlackBerry smartphone handsets

Interestingly, the Minister of Communication and Information is not authorized to ban the import of goods to Indonesia. However, authorized or not, sans the requisite certification from the Directorate General of Post and Telecommunications of the Department of Communication and Information, any importers, including RIM, are consequently unable to import the BlackBerry to Indonesia.

The above is true because under the National Single Window system the Directorate General of Custom and Excise of the Department of Finance can only approve imports of telecommunication products that have the Directorate General of Post and Telecommunication certification.

The decision is not to be seen as a means of prohibiting the purchase or usage of BlackBerry smartphones. As noted earlier, all existing BlackBerry smartphones and services will remain as they are. The decision only affects the import and release of new models into the Indonesian market. This is clearly the point the Department is making in its latest press release, No. 141/PIH/KOMINFO/6/2009.

It seems that the government is willing to play hardball with RIM with respect to the establishment of an after sales service center. The Department’s view is that the existing BlackBerry user base in Indonesia justifies an after sales service center, particularly as the number of users would only grow with the release of new handsets.

Finally, the Department and the government have already characterized this as a consumer protection issue. Specifically, they are enforcing the provisions of Law No. 8 of 1999 to ensure that Indonesian consumers enjoy their rights with respect to BlackBerry equipment.

The ball is clearly in RIM’s court.

Michael Jackson -- A Music and Cultural Icon

2009-06-30T00:01:00.005+07:00

There is little doubt, at least in my mind, that Michael Jackson was a musical genius. His eccentricities must not detract from this genius. There might always be question marks about some of his personal decisions and the manner in which he lived his life, but talent is talent and that deserves to be recognized.

I attach a video of the Michael Jackson singing one of his signature songs, The Man in the Mirror. If there was any need to see why there has been such an outpouring of grief the world over, then this is it. Just sitting back and watching the behaviour and reactions of the fans that attended his concerts sometimes beggars belief.

I liked the music. It was something that I grew up with and something that will be part of me forever. I think we all have songs that we claim ownership over in the sense that this one particular song coincides with a defining or important moment in making us who we are or pushes us in a particular direction, something that touches our innermost soul and being.

The Man in the Mirror is a song that does this for me.

Enjoy.

Justitia -- Lady Justice

2009-06-28T17:40:00.005+07:00

Justitia or Lady Justice (photo from here) as she is sometimes called represents the power of the courts (through her sword), the need to balance competing interests (scales), and the equality of law (through her blindfold). Lady Justice has not always worn a blindfold.

However, despite the ideals that Justitia aspires to, it is interesting to contrast this with the writings of Anacharsis (Scythian - Ancient Iranian) in the 6th Century BC, who wrote:

Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.

(Plutarch Parallel Lives 'Solon' bk. 5, sect. 2. Cf. 319:19)

The interesting issue for me relates to my previous post on Prita Mulyasari and whether justice is really blind to those events that unfold around it?

Maybe it is time for me to get back into the practice of law...

Interesting Fact...

2009-06-28T17:23:00.003+07:00

Indonesia has the most known mammal species of all countries in the world. Unfortunately, it also has the most mammal species under threat of extinction.

Trivia -- Interesting Facts...

2009-06-28T11:55:00.007+07:00

It has been a while since I posted some interesting, or not, piece of trivia. Generally, these tid bits are only every going to be useful in games like trivial pursuit or Jeopardy or maybe Who Wants to be a Millionaire. But, they are fun.

Did you know any of the following:

1. That each year insects eat one third of the world's food crop;

2. That human thighbones are as strong as concrete;

3. That apples, not caffeine are better at waking you up in the morning;

4. That the evidence of a bloodhound is admissible in an American court of law;

5. That a raisin in a glass of champagne will float to the top and then sink to the bottom over and over again;

6. That the average human body contains enough iron to make a 7.62cm nail;

7. That bulletproof vests, fire escapes, laser printers, and windscreen wipers were all invented by women;

8. That the first known contraceptive was crocodile dung, and was used by Egyptians as early as 2000 BC;

and,

9. That the human brain generates more electrical impulses in a day than all of the world's telephones combined.

Enjoy!

Defamation in Indonesia -- The Prita Mulyasari Case

2009-06-27T17:03:00.006+07:00

This is an interesting case for a number of reasons, but it has become infinitely more interesting now that the Tangerang District Court has handed down its decision on the merits of the case. In essence, the Court has thrown the case out based on the legal reasoning that the law under which Prita was charged has not come into force. This means that the indictment was invalid and the allegations charged on ineffective legal provisions.

There has been much discussion about the legitimacy of the judiciary with respect to the quality of the judges being permitted to sit on the bench. These discussion generally call for immediate reform and a cleaning of the slate. The idea being one where all of the "dead wood" would be swept away and only quality timber would remain. This decision is sure to re-ignite the judicial reform debate, if the debate needs any re-igniting.

A really brief background of the Prita (photo here) case is as follows. Prita went to the Omni International Hospital for treatment. Prita was unhappy with the treatment and wrote to a friend expressing her disappointment and horror at how she was treated. This written account found its way to a mailing list, and the rest is history so to speak, as the account spread like wildfire. Eventually, Omni found out about the claims and sued Prita for defamation.

Defamation in Indonesia is both a civil and criminal offense. The civil case was heard before the criminal case (which has just been thrown out). In the civil case, Omni won a decision against Prita for the defamation. The Court in the civil case ordered Prita to pay damages to Omni to the tune of IDR 312 million. The Office of the Public Prosecutor in Tangerang decided that it was going to pursue the criminal defamation complaint as well and then had Prita placed in the Tangerang prison while awaiting trial.

Indonesia has been in a rather lengthy debate as to whether a democracy such as Indonesia should even have criminal defamation laws on the Statute Books. However, this really is not the issue, as there are democracies elsewhere that have criminal defamation laws on their statute books but also restrictive definitions as to what can be subject to a criminal defamation prosecution.

So, within this framework, the jailing of a mother of two, where one of those children is a breast-feeding infant was sure to cause public outrage. Even better still was that this is an election year, and with a presidential election in early July, this was the perfect time for some political grandstanding. Prita was eventually released from prison after some intervention from at least two of the three presidential candidates; Jusuf Kalla and Megawati Soekarnoputri are never ones to miss an opportunity.

There were even some harsh words from the Attorney General suggesting that the public prosecutors had over-stepped the mark. There was at the time the sense that perhaps the hospital had lobbied hard for the prosecutors to make a move on the criminal defamation and proceed against Prita.

Probably more interesting still was the public response that pre-empted, and perhaps even prompted, the political response and ultimate release of Prita from prison. Cyber space swung into full force and within next to no time there were groups dedicated to Prita's cause and a campaign for her release. The ease and the size of the campaign and are testament to Indonesia's online community and their ability to get organized fast.

Now comes the truly interesting part. I am all for judges who are a little bit activist and judges who are creative and novel in how they approach the law. Yet, there are those times where you simply just have to shake your head and say, "what were they thinking?" This is one of those cases.

For the record, I do not think Prita should have been put in jail pending the criminal defamation trial. The reason I had avoided writing on this subject is that from a strict legal interpretation sense the criminal provisions with respect to defamation are not absolute and there are at least three identifiable get out of defamation free cards; the statements were in the public interest, the statements were uttered in self-defense, and the statements are not defamation but the truth.

It is worth noting that the Constitutional Court has heard arguments on defamation and has held that the criminal defamation provisions are not a breach of the constitutionally guaranteed rights if Indonesian citizens. The Court has also held that any more recent legislation on defamation is to be read in conjunction with any other law or regulation that purports to govern the substantive matter of the allegation. Specifically, this means that the Law on Information and Electronic Transactions (Law No. 11 of 2008), and in particular Article 27, must be read in conjunction with the Indonesian Criminal Code (Kitab Undang-undang Hukum Pidana / KUHP).

Defamation in Indonesia generally requires the insulting of one's honour or reputation. It would seem that Prita's statements to others would in a broad sense fit into this definition. Prita's defense against the allegation would be one or more of the exceptions noted earlier. Most likely here would be the public interest and that the statements are true.

The Tangerang District Court has however decided that Law No. 11 of 2008, which was enacted on 21 April 2008, does not come into force until 21 April 2010. Therefore, by the court's reasoning, the law is not officially in force and people cannot be charged under any provisions that it contains.

This is simply wrong. But, let's examine the rationale. The court relies on Article 54(2), which states the following:

All Government Regulations must be confirmed no later than two years after the enactment of this Law.

The court has therefore held that while there are pending subsidiary legislation to be confirmed the primary law is not in force.

However, this must be contrasted against Article 54(1) of the same Law, which states the following:

This Law comes into force on the date of its enactment.

Clearly, the primary law is in force according to the provisions of the law itself.

The judges have erred in their judgment on the merits of the legal basis of the case. The Office of the Public Prosecutor must appeal this case. The grounds for appeal are that the court has made a mistake of interpretation. Furthermore, the Article on which the Prita case is based, Article 27 of Law No. 11 of 2008, does not require any subsidiary legislation to be confirmed in order to be effective.

The impact of the decision is far-reaching in that all laws that have seen people charged, convicted, and detained based on a primary law where there was pending subsidiary legislation now have cause to go back and revisit the legal foundations of those cases. Lawyers in all pending cases need to look at whether there is a similar provision in the primary laws under which they have clients charged, as if there is pending subsidiary legislation then there are arguments to be made that the primary law is not in force.

There are also some serious questions to be asked where public prosecutors have brought cases to trial based on electronic evidence as defined in Law No. 11 of 2008. The serious questions here include, "if the law is not in force, then can the electronic evidence derived under its definitions be valid?"

Going forward the impact on legislators and drafters is that if they want a law to come into immediate force then the primary law must contain all the necessary provisions or primary laws must be submitted as a package deal with all the subsidiary legislation already prepared.

The decision needs to be overturned on appeal, if for no other reason, just to ensure legal certainty of legislation. The legal rationale and reasoning of the Tangerang District Court is wrong. It is unclear whether they were swayed by public opinion or feelings of "it is the right thing to do", but the decision is misguided. An Indonesian account of the decision can be found at Legal Minded by Ari Juliano Gema.

Once again, for the record, I am not for Prita being jailed. However, I am for the rule of law and proper enforcement of the law, and for all people to be treated equally under the law. The question of whether Prita has defamed Omni is a different question to the one being discussed here with respect to legal interpretation and the making of laws from the safety of the bench.

This is clearly not in the best interests of Prita (particularly if the case gets overturned on appeal), not in the best interests of Indonesia, and not in the best interests of the law.

The appeal is something I will certainly be watching.

Michael Jackson RIP

2009-06-26T16:44:00.004+07:00

This is a story of talent, triumph, tragedy, and potential.

The death of Michael Jackson at 50 is tragic. It brings to end an unbelievable music career. The man was not without his detractors and not without controversy. However, he has created a legacy that will endure long after his untimely death.

May you find a peace in death that you never seemed to truly find in life.

Michael Jackson (1958 - 2009) Rest in Peace.