LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 31/September/2013
Pre-trial detention often raises questions; how can one person suspected of committing a criminal offence get detained while on the other hand another doesn’t? This can be unraveled by discussing about the concept itself; Article 21 of the Criminal Procedure Law states that detention is done towards a person suspected of committing a crime based on “sufficient evidence” and
“alarming circumstances” that the suspect will escape, damage or destroy physical evidence and/or repeat the offence. The main problem; no examination mechanism in the pre-trial phase on “sufficient evidence” for detention. This urges investigators to work professionally because they’re obliged to explain the rationality of detainments.
In the Criminal Procedure Law Bill, PSHK encourages the presence of an institution in the criminal justice process; the Preliminary Elimination Judge (Hakim Pemeriksaan Pendahuluan/HPP). Besides fulfilling the process of law principle as mandated by ICCPR (International Covenant on Civil and Political Right) and avoiding arbitrary detention, this judicial power is authorized to assess reasons of detainment. Pre-trial institutions currently exist, yet still not in accordance with the development and needs of the modern criminal justice system. Besides being a post factum (done after detainment) mechanism, pre- trial often leads to mere administrative completeness examinations instead of substantive issues on “sufficient evidence” and “alarming circumstances”, which are often subjectively interpreted by investigators. There needs to be a paradigm shift that detainments are “needed” rather than “mandatory”;
detainments should be considered as a last resort. Those carried out exceeding the level of need will reduce society’s trust in the law. (MSG) Legislation
Criticizing the Concept of Pre-Trial Detainment
In This Issue
Criticizing the Concept of the Pre-Trial Deatinment
Legislation
Legal Policy
Government Sets Up Governing Body on REDD+
A Dark History in the Struggle for Human Rights in Indonesia Intervention Efforts towards Judicial Power Continues
The Abolishment of Criminal Defamation
Human Rights
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Legal Policy
Government Sets Up Governing Body on REDD+
Following up the commitment to reduce carbon emissions, the government issued Presidential Regulation Number 62 Year 2013 on The Governing Body for Reduction Emissions from Deforestation and Forest Degradation/REDD+
(“Badan Pengelola Penurunan Gas Rumah Kaca dari Deforestasi, Degradasi
Hutan”). REDD+ is a mechanism where forested nations could receive financial incentives by protecting their forests.
Article 4 of the Presidential Regulation stated that this body would assist the President in coordinating, synchronizing, planning, facilitating, managing, monitoring, and controlling REDD+ in Indonesia. With no power to directly take action, since everything will be up to the ministries, this newly established body has already gained criticism. Some CSO representatives, namely WALHI and Greenpeace, have questioned this new body, especially on whether it could work beyond business as usual. (EN)
Legislation
Intervention
Efforts towards Judicial Power Continues
The House of Representatives (DPR) continued drafting the Bill on Revisions of Supreme Court Act No. 3 Year 2009. A new issue to evaluate the performance of Supreme Court Justices every five years arose to be ruled as a provision. Several members of Parliament agreed on this argued that evaluation towards the Justices by another party is needed, and that the most appropriate to be given authority to do so are ones who chose the Justices themselves through a fit and proper test; the DPR. 2012 saw the discourse of evaluation towards Justices through the establishment of the Working Committee (Panitia Kerja/Panja) on
“Problematic Binding Decisions by Supreme Court Justices”, who also intended to evaluate Justice verdicts as objects. Although receiving a lot of negative response from society, the committee was finally formed, but is not functioning optimally.
According to Article 24 Paragraph (1) of the 1945 Constitution, Supreme Court justices are in a position of judicial power, which is confirmed as an independent power to enforce law and justice.
Discourse on their evaluation by DPR would potentially provide intervention towards these judicial authorities; even if the object of evaluation were the verdict.
Rejection towards it doesn’t mean that Justices are immune to evaluation; they would have to be evaluated institutionally, not based on verdicts made. In addition, should there be any suspicion of criminal violation by the justices, criminal law is ready to be enforced. (FN)
Legal Policy
The Abolishment of Criminal
Defamation
The threat of freedom of expression reoccurs; after more than two years since the Prita Mulyasari case, the Indonesian public is yet again facing similar cases. The application of the defamation article that was denied use in Prita’s case has been used towards Benny Handoko, owner of the @benhan Twitter account, applying the similar article to stifen freedom of expression. The case creates debates regarding the existence of criminal defamation in Indonesia’s legal system and its relevance to be maintained.
In the Indonesia legal system, criminal defamation is spread across various laws. The most commonly used are in the Information &
Technology Law as well as the articles in Criminal Law. The petition to review the constitutionality of the article has been done by many NGO’s. However, the Constitutional Court has consistently defended the constitutionality of the Law.! One debate related to the issue is on the balancing of the rights to reputation with freedom of expression. The constitutional court argues that the rights to reputation have a strong position within the social and cultural society in Indonesia. Thus, the court considers the offence of criminal defamation constitutional.
Even so, the court’s argument shouldn’t be accepted completely.
The contradiction between the rights to reputation and freedom of expression needs to be put into balance. The use of criminal
defamation offences as instruments of limitation is not a solution to balancing both rights, instead a recipe for the death of freedom of expression. In the Indonesian legal system, besides criminal defamation, tort laws on defamation also exist (Article 1372 of the Civil Code).
This civil approach is considered to be appropriate in limiting freedom of expression.!(GAT)
Human Rights
A Dark History in the Struggle for Human
Rights in Indonesia
The murder case of human rights defender Munir Said Thaib still remains a mystery. He was killed during a plane trip from Jakarta to the Netherlands on 7 September 2004, and an autopsy report from the Netherlands shows that the cause of death was arsenic
poisoning. The court has sentenced three people associated with the case, however many are still not satisfied. “Kontras”, one of the human rights organizations founded by Munir, said there were credible allegations that there are other responsible for this case that have not been prosecuted.
Munir’s death nine years ago became a dark historical event in the enforcement of human rights in Indonesia. Progress towards its unraveling is kept held back due to failure of authorities in exposing which parties should be held responsible and the legal process of the case itself. This will help in proving not only the perpretrator, but also the motive, which will open up a new chapter in the history of human rights in Indonesia. The key is in the prowess of President Susilo Bambang Yudhoyono and law
enforcement officials in revealing the case and bringing those responsible to court. The President stated, not longer after the murder, that this case is “a test of our history” and swiftly established a fact-finding team. Time is running out for the President to finish this test of the nation. Or will this case continue to test us until the end of Susilo Bambang Yudhoyono’s period in 2014, where then our hopes lie in his successor to re-open the case?
(MNS)
