Indonesian legal news archive

10 April: New Freedom of Information Bill awaiting Presidential assent. According to Indonesia's Constitution, even if assent is not provided, the Bill will automatically become law within 30 days.

5 April 2008: Eurico Guterres released from prison after the Supreme Court overturned his conviction.

5 April 2008: According to Hukumonline, the Indonesian Minister for Communication and Information has issued a Decree which prohibits foreign investors from owning, building and managing in the telecommunications sector. This would appear to run counter to the Indonesian government's recent attempt to increase foreign participation in the Indonesian economy through Law No 25 of 2007 on Foreign Investment and has been met with criticism from Indonesian Ministers and the Trade and Investment Coordination Board. The Decree also leaves in legal limbo those foreign entitles that have already invested in the sector.

2 April 2008: M. Mahfud MD is installed as Indonesia's newest Constitutional Court judge. He replaces the retired Ahmad Roestandi.

 

 

 

 

1 April 2008: Indonesia's Supreme Court has rejected an appeal lodged by Australian citizen Schappelle Corby against her conviction for drug trafficking. This was her final avenue of appeal through the judicial process. All that formally remains is the very remote possibility of presidential pardon, although, according to the Jakarta Post, her legal team has not ruled out the possibility of attempting to appeal to the Supreme Court for the third time - something that some of the Bali bombers successfully attempted. This is despite a clear prohibition of such an additional review in Indonesia's 2004 Judiciary Law.

According to Hukumonline, one of the arguments raised by Corby's legal counsel was that the lower-court judges should have allowed testimony by teleconference. This, her lawyers argued, had been permitted in other cases. For example former President BJ Habibie had been permitted to provide admissible testimony in the corruption case involving former Parliamentary Speaker Akbar Tanjung.

However, the Supreme Court declared that, under the civil law system to which Indonesia adheres, courts are not required to follow prior judicial decisions. Unlike the common law system, declared a Court spokesperson, the civil law system to which Indonesia adheres, does not require its judges to follow even their own previous decisions. Such decisions have only persuasive force.

27 March 2008: the South Jakarta District Court handed down a decision in a civil case in which the government, as plaintiff, argued that the Supersemar charitable foundation (yayasan) – set up and headed by former President Soeharto – had misappropriated funds required to be ‘donated’ to the foundation by state-owned banks. Rather than being used as required by a 1976 Government Regulation – that is, for scholarships and charities – Supersemar funneled large amounts to private companies managed by the late Soeharto and his cronies. 

The Court accepted the government’s arguments, and ordered Supersemar to pay $US110 million in damages to the government. This was approximately one quarter of the amount the government had initially sought, because the Court accepted that only a proportion of the funds had been misappropriated and that, in fact, many of the funds of the yayasan had been allocated to scholarships.

This case is somewhat of a legal milestone, because it represents the first case in which Soeharto’s improper business dealings have been successfully pursued. However, optimism is premature for two main reasons. First, the government had asked the Court to find Soeharto personally liable – through one of his heirs. However, the Court found that Soeharto himself was not responsible for the misallocation and had not, therefore, broken the law. This finding ignores that Soeharto led the yayasan at the time the misappropriations took place and that many relevant credible allegations had been made during his time in power that he, his family and cronies, had profited greatly through Supersemar and other yayasan. Second, it is likely that one or both parties will appeal, meaning that the case can be reheard by a higher court which might hand down a different decision. The higher court might attribute personal liability for Soeharto, but, on the other hand, might find no liability for Soeharto or Supersemar altogether.

Above: the Indonesian wayang figure: Semar - the clown who, in the puppet play, is deceptively wise.

17 March 2008: Former President Director of Bank Servitia, David Nusa Wijaya, has had his sentence for corruption reduced by the Indonesian Supreme Court in a review (peninjauan kembali) of his case. He was found  guilty of misusing funds provided to banks in the wake of the 1997 economic crisis, causing a ‘loss’ of Rp 1.2 trillion to the state.

The Court found that in previous trials and error of law had occurred because the wrong anti-corruption law had been applied against him. He had been convicted under a 1999 Anti-Corruption Law, yet the relevant acts were carried out before 1999, when a 1971 Anti-Corruption Law prevailed.

According to Article 1(2) of Indonesia’s Criminal Code, ‘if a change in law occurs after a crime is committed, then the law most favourable to the defendant shall be applied’. The Court decided that the 1971 Law was more favourable, and, applying it, reduced his sentence from eight to four years’ imprisonment.

16 March 2008: Irawady Joenoes - a member of Indonesia's Judicial Commission, which monitors Indonesian judicial propriety - is found guilty of taking a kickback in a land procurement transaction.

At trial, Irawady had argued that he had been deliberately ‘working undercover’ when he received the money and, indeed, had written approval from the Judicial Commission Chairperson to do so. The Anti-Corruption Court judges rejected this argument, holding that because he was not an ‘investigator’ (penyidik), he had no authority to act in this way. He was sentenced to eight years in jail – two years more than prosecutors had sought in their indictment.

15 March 2008: Prof. Mahfud MD, Prof. Jimly Ashshiddiqie, and Akil Mochta are selected by the Indonesian Parliament's (DPR) as its three appointees to Indonesia's Constitutional Court for the period of 2008-2013.. The Executive and Supreme Court are yet to select their three appointees.

12 March 2008: Indonesian Supreme Court commutes death sentences of three of the 'Bali 9'. Indonesian lawyers attempt to challenge validity of law under which executions take place in Indonesia. Read more here.