Indonesian legal news

10 October: On Tuesday 7 October, Jimly Asshiddiqie resigned as Chief Justice of Indonesia's Constitutional Court. Although Jimly was not without his critics - including those who disapproved of his rather public aspirations to become involved in politics - he has undoubtedly made a very positive and significant contribution to Indonesian legal and judicial reform. In the wake of Soeharto's downfall, a number of institutions sprung up - including the Ombudsman, the Judicial Commission, the Anti-Corruption Commission and the Constitutional Court. Other institutions, such as the Supreme Court, were subject to significant reform. It is probably fair to say, though, that most of these new institutions, and the reforms of older ones, have not been entirely successful.

The Constitutional Court, on the other hand, has shown itself to be an honest and competent judicial insitution, both in its administration and in its handling of cases. (Although some of its decisions have been questionable from a legal perspective.) The Court is an institution that has grown from very humble beginnings to being perhaps Indonesia's most respected judicial institution. Given the reluctance of Indonesia's past politicians to allow courts to exercise judicial review, and Indonesia's poor track record of judicial competence and integrity, things could have been very different. Jimly must be congratulated for establishing a Court upon which other Indoneesian courts can model themselves. I hope that the new batch of Constitutional Court judges can continue to building on these achievements and, in fact, concentrate on further improving the quality of the Court's decisions.

19 August: Prof. Dr. Mohammad Mahfud M.D., S.H., S.U. is elected as Chief Justice of the Constitutional Court for 2008-2011. He is a former member of the Indonesian national parliament and a Minister for Defence. In the election, held amongst the nine judges on the Court, he narrowly defeated the current Chief Justice, Jimly Asshidiqqie, who will remain on the Court.

2 July: In mid June 2008, the Constitutional Court decided that three self-proclaimed representatives of the adat (customary law) communities of Lor Lim, Dullah and Lo Ohoitel, lacked standing to bring an application before the Court. The applicants – three ‘kings’ (raja) of village-level communities – sought a review of Law No 31 of 2007 on the Establishment of the City of Tual in the Province of Maluku. They claimed that the establishment of the city damaged their rights because it reduced the geographic ambit of their adat community because the establishment of the City divided up their communities.

However, the Court held that the applicants could not meet the standing requirements of Article 51(1) of the Constitutional Court Law for two reasons. First, they could not prove that they were the recognised representatives of the adat community they purported to represent. In fact, testimony that they were not ‘representatives’ was heard during Court sessions. Second, they could not point to a constitutional right they possessed that the statute had breached.

Although not considered in the decision, the case raised the issue of how the existence of an adat community could, by law, be recognised. On the one hand, the Local Government Law (Law No 32 of 2004) declares that an adat law community can be recognised by a regulation enacted by a regional parliament (Perda, or Peraturan Daerah). On the other hand, however, Article 18B(2) of the Indonesian Constitution appears to require that such communities be recognised, or regulated, by statute.

Around the same time, the Constitutional Court issued another decision relating to adat. This case was brought by Muhlis Matu – a former member of the South Sulawesi regional parliament accused of premeditated murder. His lawyer argued before the Constitutional Court that his deed was motivated by a desire to uphold the honour of adat. The MK held that fulfillment of an adat obligation will not exculpate criminal liability under statute law. It can, however, be considered by judges when they come to determining criminal culpability – such as in sentencing.

30 May: Indonesia's newest Constitutional Court judge - Dr Arsyad Sanusi - took his oath yesterday (29 May 2008). Sanusi, formerly Chairperson of High Courts in South Sulawesi and West Sulawesi and with a PhD from the University of Indonesia, replaces Justice Laica Marzuki, who retires at the end of May 2008.

2 May: Simon has published an article on the Hukumonline website about the Indonesian Constitutional Court's review of Indonesia's Film Law, particularly its provisions on censorship. Read the article here.

1 May: The Indonesian Constitutional Court has found the Law on Matters relating to Films (Perfilman) to be ‘conditionally constitutional’. The Court declared that it had concerns about the consistency of the statute’s provisions on censorship and classification with the ‘spirit of democracy’ and ‘respect for human rights’. However, given that revision to the statute would take significant time, the court allowed the law to stand, demanding instead that it be implemented – by the Censorship Board – in a way in which the spirit of democracy and human rights was upheld.

22 April: According to the Jakarta Post and Kompas, the Indonesian President met yesterday with the highly-respected Institute for Constitutional Study (ICS), which is very similar in composition to the 2002-2004 Constitutional Commission. They have studied the four rounds of amendments to the Constitution approved by the MPR from 1999-2002. The Institute’s members discussed with the President possible amendment proposals that would give the President more power in the lawmaking process and which would give greater budgetary and legislative powers to the National-level Regional Representative Council (DPD).

ICS Chairperson Sri Soemantri reported that the president felt hamstrung by the DPR. Even though Indonesia had adopted a presidential system, the President had noted, the DPR often ‘torpedoed’ his initiatives. The DPR’s concentration of power, it was suggested, could be diluted by allowing the President to veto a bill if approved by less than three quarters of DPR members. As it currently stands, bills approved by a majority of DPR members come into force automatically within 30 days, even if the President objects to the bill and refuses to assent to it.

According to Hukumonline, the State Audit Commission (Badan Pemeriksaan Keuangan) reports that 11 of the official Supreme Court residences are occupied illegally – mostly by retired judges.

18 April: According to Hukumonline, Charles Alfred Barnett, an Australian, faces proceedings in the South Jakarta District Court to extradite him to South Australia to face pedophilia charges. The alleged offences took place before the mid 1990s and are alleged to have taken place in Australia, not Indonesia.

15 April: Amrozi, Imam Samudera and Ali Gufron, sentenced to death for their roles in the 2002 Bali bombing, have formally declared, in statements sent to the Bali Chief Prosecutor via the Denpasar District Court, that they will not seek Presidential clemency. This paves the way for their execution; had they sought clemency, then their executions would have been stayed pending the outcome. According to Tempointeraktif, Bali Chief Prosecutor Alit Adnyana is awaiting further instructions from the Attorney General with regards to the execution. The last avenue of judicial recourse for these three bombers was exhausted earlier this year, when the Supreme Court turned down a case review (peninjauan kembali). Amrozi’s lawyers had sought a second case review, but this, it seems, is prohibited under Indonesia’s judiciary laws.

According to Kompas, Law and Human Rights Minister Andi Mattalatta has doubts that a Draft Law on the Anti-Corruption (Tipikor) Court will go to the Indonesian Parliament (DPR) in 2008; nor that such a Law will be enacted within three years as required by a Constitutional Court decision last year. In that decision, the Constitutional Court held that the establishment of the Tipikor Court was unconstitutional, but rather than ordering that the Tipikor Court be disbanded, the Constitutional Court gave the DPR three years to enact a new legislative basis for the Tipikor Court. If the DPR fails to meet this deadline, then the Tipikor Court will lack a legislative basis for its exercise of jurisdiction and may, therefore, cease to operate. This would be a significant digression for the anti-corruption movement, given that the Tipikor Court has had a 100% conviction rate in the cases it has heard thus far.

14 April: Last week, the Chief Justice of Indonesia’s Supreme Court (Mahkamah Agung), Bagir Manan, presented the Court’s 2007 Annual Report before Indonesian judges, parliamentarians and international donors. Included were the following points of interest.

2000 of Indonesia’s approximately 7000 judges will be trained in Code of Judicial Ethics by end of 2008.

In 2007, Indonesian courts heard over 3.5 million cases – up 26% from 2006, during which 2.7 million cases were heard. In 2007, 93% of cases were heard by the General Courts (pengadilan umum). The Religious Courts heard 6%; the military courts 0.25%; and the administrative courts only 0.03%. The Supreme Court has determined that 99.7% of these cases were heard and decided within reasonable time limits.

In 2007, Indonesian appeal courts (pengadilan tinggi)heard 12,408 cases, an increase of 10% from the previous year.

In 2007 the MA received a total of 9,516 cases and, during the same period, decided 10,714 cases and referred 10,554 cases back to the lower courts. The Court has a backlog of just over 9,000 cases.

The MA handed down guilty verdicts in 87% of special criminal cases – such as illegal logging, corruption, narcotics and child protection.
In 2007, the Court received 532 complaints about court processes. 53 staff were disciplined, including 18 judges.

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