Category Archives: My Perspective

Hi everyone. Just want to inform you that Anatman Pictures has published a documentary video about the criminalization of marijuana in Indonesia. This video is inspired by my publication about marijuana (you can find the publication here).

I starred and co-wrote (with Mahatma Putra) the script for this video, acting as an interviewer. See the link to the video below.

this article was published by Jakarta Globe On 2nd December 2009 :

http://thejakartaglobe.com/opinion/court-brokers-need-to-be-broken/344869

Ongoing legal battles among our law-enforcement agencies have featured prominently in the news recently. For many of us working within the Indonesian legal system on a daily basis, it was not surprising that wiretapped conversations made public by the Constitutional Court suggested that some lawyers were involved in trying to weaken the Corruption Eradication Commission.

Brokering deals between lawyers and public servants is nothing new, and unfortunately, lawyers are often a part of the judicial mafia. These “black lawyers,” along with corrupt police, state prosecutors and judges involved with the judicial mafia, are “the elephants in the room” of our legal system.

This is a common problem and a complicated issue that urgently needs addressing. President Susilo Bambang Yudhoyono himself said last week that the country’s law enforcers must root out any practice of deal-brokering, and that the eradication of the judicial mafia is a priority for his first 100 days in government.

In relation to the case against the deputies from the antigraft commission, also known as the KPK, the whereabouts of Anggoro Widjojo, the fugitive businessman who first accused the officials of receiving bribes from him, remains unclear. One of his lawyers, Bonaran Situmeang, claims Anggoro refuses to return to Indonesia because law enforcers have been unfair to him and he is seeking justice according to his own views.

In this situation, lawyers are bound by the Advocate Law to protect their client’s privacy, so it would seem within reason that Anggoro’s lawyers have declined to disclose his whereabouts. But on the other hand, there is the little matter of national security. In this case, the lawyers for Anggoro are withholding information regarding an alleged criminal who is a threat to the country as the situation continues to deteriorate among the KPK, the National Police and the Attorney General’s Office. Furthermore, the Criminal Code deems concealing information about criminal actions a crime. This is where the battle of idealism begins.

Anggoro’s lawyers have the option to hide behind the Advocate Law to protect their client’s privacy. This choice would seem their best option; by giving up their client, they would be bound to lose their credibility as lawyers. However, what about their obligation to society, to protect the country and serve the people? A lawyer’s duty is not only to protect their clients, but also to ensure that our legal system works fairly and efficiently.

This is the question of the hour: Do Anggoro’s lawyers and all the so-called black lawyers really believe in the ethics and the morality that their profession stands for?

US President Woodrow Wilson once said that “the practice of law has become a more highly technical and complicated business.” This is one such example of that business. We have seen so much, in fact, that brokering deals with public servants and lawyers is nothing new in our beloved country. Shockingly, the public has been asked to pity Anggoro and his family, claiming he is a victim. If his lawyers say only a court can determine his guilt, then why don’t they bring their client back to Indonesia for a lawful trial?

With the Advocate Law having only been enacted in 2003, lawyers are still learning how to uphold the law in regard to their duty as a “law enforcers.” The infighting between the Indonesian Lawyers Association, Indonesian Congress of Advocates and the former Indonesian Union of Advocates was a clear example of how the learning process is still ongoing.

Other cases where lawyers were involved in brokering deals include the Bank Indonesia liquidity credit case, when Reno Iskandarsyah, the lawyer for Bank Restructuring Board (BPPN) Chief Glenn Yusuf, allegedly bribed state prosecutor Urip Tri Gunawan in January 2008. In the Harini Wiyoso case, the lawyer of Suharto’s step brother, Probosutedjo, bribed Supreme Court staff in regards to the graft case brought against his client in 2005. Then add to that the recent allegations against Lucas, the lawyer for Boedi Sampoerna, in connection to the controversial withdrawals in the PT Bank Century case, and the allegations that the lawyers for Nyoman Susrama, the brother of a local Bali district head who stands accused of murdering a Radar Bali journalist, encouraged witnesses in the trial to give false testimonies.

According to renowned Indonesia scholar Daniel S Lev, the reason lawyers here are widely known as brokers is because they believe that money makes the legal system work much better and more efficiently. That is why when they are handling cases, their perspective is often one of bribes and connections.

Today, talk of legal reform has begun reverberating following the very public clash between the state’s law enforcement agencies. Reform for lawyers, however, is often overlooked because lawyers are the exclusive representatives of civil society in the court and because they are independent of the state. But this is the prime reason why lawyers have a duty to serve the country by ensuring our judicial system works fairly, and that no money or connections are involved. Their devotion to the rule of law is paramount.

Since lawyers do not seem to want to stand up for the greater good, we now have to rely on the government to enforce the law reforms. We hope that the president’s “ Ganyang Mafia ” (“Crush the Judicial Mafia”) credo is not just rhetoric without substance, but also includes the mafioso that are often overlooked: the black lawyers.

“Bahrom Rasjid, one of the law’s drafters and a member of parliament, says the bill was passed unanimously Monday by the regional house of representatives. It will take effect within 30 days.” – The Jakarta Post 14/09/2009

The news in The Jakarta Post, 14 September 2009, had been annoying me for the past few days. It takes place in Aceh, a semi-autonomy provinces  enforcing Sharia law provisions. The law draft came from the office of Governor Irwandi Yusuf, a US-educated veterinarian with secular views who spent his early adult years fighting in the Acehnese armed resistance. Within 30 days as of 14/09 Aceh province will allow stoning to death for adultery and whipping for premarital sex and homosexuality, whereby such will also be punishable by steep prison

Stoning as a form of sanctioning is applied in various forms in Afghanistan, Iran, Pakistan, Sudan, Saudi Arabia, the United Arab Emirates and parts of Nigeria. But its use is a point of contention among Islamic scholars. The new Indonesian law also imposes tough sentences and fines, to be paid in kilograms of gold, for rape and pedophilia, but the most hotly disputed article was on adultery and states that offenders could be punished by a minimum of 100 lashings and a maximum of stoning to death. The most notable example in modern Islam was that of Amina Lawal, a young woman who was sentenced to death in a Nigerian state in 2002 for having sex outside marriage, but was later released.

Do you remember when the death penalty procedure was challenged by Moslem’s Advocacy Team (Tim Pembela Muslim) who were the defense lawyers for Amrozi (accused Bali bombers), in Constitutional Court?

They questioned the procedure and proclaimed that there is only an 85% chance in dying when a person is shot for the first. There is a possibility  that this might lean towards “torture action”, whereas such is against basic human rights “freedom from torture” that is stated on our basic constitution ( UUD 1945 ) article 28 I.

Freedom from torture, is a basic principle of human rights that has been decided by our basic constitution (UUD 1945) second amendment and Law no 39/1999 articles 4.

Although it is Regional regulation, Law On Stoning to death should refer to National Law No 32/2004 on Regional Regulations and the national laws  which should be the basis for forming regional regulations,  Articles 136 (4) states that Regional regulations may not contradict with national laws and existing common norms and values.

The Definitions about “against common norm and value” can be interpreted as a policy that is not only discriminative but also results in the disturbance of community relationship and public service. The consequences beyond that is if it contradicts with national laws and existing norms and values, it is not binding anymore. Moreover, the bill violates national and international treaties signed by Indonesia protecting the rights of minorities and women because “morally unacceptable action”, such as whipping for premarital sex and steep prison for homosexuality.

Althought Indonesia is the largest moslem population in the world, we are not a moslem country. Let me quote the words of former presidentKH Abdurrahman Wahid: “we must see Islam as an ideological brick that is part of an Indonesian building of principles established on diversity”. The foundation of our five pillars principle,known as “Pancasila” that rules our country is unquestionable.
The new bill on Aceh, is a backward step to our democracy. It is discriminatory and it is saddening. because it violates CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) that was signed by Indonesia. I really hope that the national government will take action on this and will not sit silently.

“Lawyers should at all times maintain the honor and dignity of their profession as an officium nobile (honourable profession)”

Whenever I attend Special Education for Advocates (PKPA) ccourses, that phrase always echoes in my mind. Those fine words were stated by my class-tutor who is not just senior lawyer but also a renowned.

Ever since I was in Junior High School, my dream was to become a lawyer. In order to pursue this dream, as a first step, I attended Law School at the University of Indonesia after graduating from High School. The next step to become a lawyer in Indonesia is to attend PKPA courses in order to grasp a firm knowledge of Indonesian law followed by taking a test held by the Indonesian Bar Association (PERADI). After passing the test, all prospective lawyers are required to compose six case study reports, which consist of three reports regarding to criminal cases, and six reports regarding to civil cases, all of which must be cases that the lawyer has handled by him or herself. To fulfill these requirements, after graduating with a Bachelor of Laws Degree, I signed up for PKPA courses. I am now in the steps of preparing for the test conducted by PERADI and just a few steps away from becoming a lawyer. Based on my experience so far, I would like to point out a few issues in our lawyers recruitment system.

What is interesting to highlight is the very unclear recruitment system of advocates in Indonesia. This problem contributes to disputes between bar associations in Indonesia, namely PERADI and Indonesian Congress of Advocates Association (KAI). These disputes show that advocates are yet able to live up to the phrase officium nobile. But, I am not going to take a side.

First, there are no clear rules regarding to the PKPA courses. There are no rules and regulations concerning the tutors for the courses and no clear guidelines regarding to the curriculum and timetable of the courses. In most institutions that hold such PKPA courses, the participants are required to pay a large sum of fees ranging from around IDR 4 Million to 5 Million. Even with fees that high, there is no guarantee that the participants will be taught by appropriate tutors, such as senior lawyers or renowned law academicians. The Bar Association Regulation No 03/2006 (Peraturan PERADI no 03/2006) does not provide requirements for tutors in the preparation courses. Article 7 of the regulation only stipulates common provisions regarding to the tutors. Furthermore, there is no required timetable for the courses. Some institutions offer courses that only last for a period of one month. How much can a person actually learn in a month? Is this timetable adequate? These issues could most likely impact the honor and dignity of the lawyer profession itself. Furthermore, without clear rules, institutions are turning PKPA courses into a business, therefore not maintaining the quality of the courses.

PKPA stands for Special Education for Advocates. From the word education itself, we can see that the means of this class in not only to teach prospective lawyers academic knowledge (which was already taught in law school) but also moral and integrity as lawyers. I would like to say, PKPA courses, which plays a large role in giving birth to advocates, could by no means be simple. Furthermore, Article 5 of the Indonesia Advocate code also requires that tutors for PKPA courses satisfy the phrase officium nobile. This means that the tutors must be advocates, law practitioners or academicians who hold high the law profession.

Furthermore, I have to say the knowledge I obtained in the PKPA courses were very different from what was expected. Frankly, I was quite disappointed. One of the reasons why the advocate profession is viewed as an officium nobile is because all lawyers have a duty to conduct free legal service for the less fortunate or more popularly known as pro bono work. This is stipulated in the Advocate Law of Indonesia. However, I found that this subject was seldom mentioned in the PKPA courses.

I view that it is very important that the Bar Association of Indonesia  encourage the prospective lawyers to fulfill their professional obligation to serve the less fortunate. It is very important to send out the message that building integrity as a lawyer is as important as or perhaps more important than making money. All prospective lawyers should understand that pro bono work is a professional responsibility, not an act of charity. In the other words, such pro bono work may help build the moral integrity needed by legal enforcers to support their legal knowledge. This is important because lawyers provide legal service (both free and paid) directly to people who need help. Therefore, it is crucial that all lawyers build their moral integrity through pro bono work. What is astonishing and saddening is that in fact, the number of lawyers that actually conduct pro bono work is very limited.

In my opinion, this negligence is one of the impacts of the chaotic advocate requirement system. If you google the words “being fooled by lawyer” (ditipu pengacara – in Indonesian words) you will get a wide rage of results. This fact must be viewed by the Bar Association as warning signs to reform the recruitment system.  While I served at the legal aid of UI, I observed that the main reason that people seek legal aid is apart from having limited funds, they no longer have faith in commercial lawyers. By creating strict regulations, prospective advocates shall be subject to more stringent requirement. Consequently, the honor and dignity of lawyers will automatically be established.

If you compare our current recruiting system to those of the United States (US), the US requires a 4-year college degree, 3 years of law school, and passing a written bar examination in order to become a lawyer. In my opinion, this is far more complicated. However, with strict rules and guidelines the US is able to produce lawyers which reflect the phrase officium nobile and holds the presidential post. I believe we can do that also. As I mentioned before, the appropriate strict rules and regulations are essential in order to maintain the quality of lawyers in Indonesia. We might not be able to be the same as the US is now. But it is a start. This is where the Bar Association comes in.

The law society of Indonesia put its faith in the bar association to produce high quality advocates through PKPA courses. This can be seen by the large amount of profit that these PKPA courses have gained.  This gives an even larger burden to the bar association in order to satisfy the public. Being trusted to groom and give birth to Indonesia’s advocates of tomorrow, it is the bar association’s main duty to improve the quality of PKPA by setting up the correct rules and guidelines.