20 November 2007

Criminal Procedure in Indonesia

The Bill on the Criminal Procedure Law is expected to be finalized and ready for submission to the House of Representatives (DPR) by August 2007. However, this target date is far from being assured and further delays are possible. Nevertheless, the Bill introduces some significant changes to criminal procedure and these changes will have an immediate impact on the conduct of criminal matters from the investigation stage through to the verdict and appeal stages.

The most interesting of these changes is the incorporation of the Judge de Liberte de la Detention concept as the Judge Commissioner in the Bill. In essence the Judge Commissioner has the authority to evaluate the investigation and prosecution phases and other powers as granted under the provisions of the Bill.

Some of these other authorities include re-interrogating suspects and witnesses to ensure that a proper trial has been conducted. These authorities permit the Judge Commissioner to make determinations regarding the legality or not of any arrest or detention, to issue search and seizure orders, and the tapping of telecommunications, among others. The Judge Commissioner will also oversee the cooperation between the various law enforcement agencies to ensure that the case file does not bounce around these agencies and cause a delay to a fair and speedy trial process.

The position of Judge Commissioner will be held by a judge selected from the High Court and then appointed by the President for a term of 2 years.

The time a suspect can be kept in detention is reduced to 15 days and any extension to this period of detention is to be based on an application to the Judge Commissioner. If the application is granted the detention period can be extended.

In terms of legal recourse for the parties to a proceeding, all decisions may be appealed to a higher court; District Court to High Court and High Court to Supreme Court. However, acquittals are specifically excluded from this list. The current practice within the courts makes a distinction between absolute and conditional acquittals however this distinction is not made within either the current law or the Bill. On face value this distinction would appear to allow subjective discretion to be applied by the courts in accepting lower court decisions on appeal.

The judicial review (peninjauan kembali / PK) for cases will only be granted if there is new evidence or a situation existed that was not know at the time or adduced in the hearings that would have resulted in a different decision. Decision where there are conflicting decisions handed down for the same crime to different defendants, one is found guilty and the other is acquitted. In these cases the decisions will be subject to review.

The other issues in the Bill of interest are the broadening of the authorities for prosecutors to set aside cases where the allegations relate to minor offences subject to a term of imprisonment of less than a year or a fine or where the suspect / defendant is above 70 years of age.
Even if the Bill were to come before the DPR in August as planned it would be unlikely that this Bill would pass the DPR in 2007.

Syariah Banking

The fact that the State with the world’s largest Muslim population still does not have a Syariah banking Law should be, or perhaps is, a source of some embarrassment for Indonesia. The Syariah Banking Bill has been on the table since late 2005 when the DPR took it up as an initiative on 27 September 2005. However, despite being allocated to Commission XI and a number of hearings and comparative study tours, the only real development on the enactment front has been an ever-expanding list of problems and contentious issues.

This is in stark contrast to the positive outlook of some of my earlier writings which did not envisage the sorts of problems that have arisen.

Some of the issues that have arisen and developed over time include:
  • Overlapping responsibilities between the Syariah Banking Committee (Komite Perbankan Syariah) and the National Syariah Board which is under the authority of the National Ulema Council (Majelis Ulema Indonesia / MUI). Both of these organizations are to play a role in issuing fatwas and/or opinions about Syariah banking products and services (see Articles 32-34);
  • Syariah banks obligations to open their books and report to Bank Indonesia (BI) which in effect provides not only a supervisory role but also an investigative role that will ultimately overlap with the role to be played by investigators tasked with investigating alleged breaches of prevailing banking provisions (see Articles 56-58); and
  • A lack of standardized and acceptable Syariah banking accounting methods and principles.

The positioning of the Syariah Banking Committee is critical as fatwas and opinions issued by the MUI or the National Syariah Board have no legal binding authority as such. Therefore, it is BI’s position that the more appropriate placement of the Syariah Banking Committee is under the auspices of BI so as there will be subsequent binding authority to any fatwas issued by the Committee.

This is an issue that will continue to generate heated and intense debate, particularly with respect to who has the legal and religious qualifications to make determinations regarding the validity of Syariah banking products and services.

Potentially, divergent opinions on what constitutes a valid Syariah banking product or service will negatively impact on the ability of Syariah banks to carry on their business as there will be no, or only limited, legal certainty.

Public Order in Jakarta - One for the Ages!

Sneaking in under the radar is the new Government of Jakarta Regional Regulation on Public Order. The impact of this Regulation will be heavily dependent on enforcement of its somewhat draconian provisions because without adequate law enforcement it is likely to go the way of other public order ordinances, irrelevancy. The public needs to be aware of these provisions for no other reason than the many practices that Jakartans have taken for granted are no subject to severe criminal penalties and fines. Ignorance of the law is not a valid excuse.

The reality of the Regulation is that law enforcement must be more serious in enforcing the provisions as failure to do so would make a mockery of the stiff penalties. Nevertheless, the reality exists that the new and revised provisions are a potential income boon for police officers and other law enforcement officials prepared to accept “compensatory payments” in lieu of issuing a formal citation.

For long-term residents of the capital, the Regulation may be amusing in that perversely funny kind of a way as just about everyone will be able to recall an incident where they have breached these new provisions themselves and question whether the serious penalties and fines provided by the Regulation will be sufficient incentive to change their behaviors. The provisions of the Regulation will not only require a commitment to compliance but will demand a more significant cultural shift in acknowledging what is acceptable public behavior and what is not.

The examples are too numerous to list in this ILB however there are some notable mentions that must be made:

  • jay walking is prohibited;
  • public buses must stop at bus stops and people must board at bus stops;
  • no road closures without permission;
  • people can not offer themselves as “jockeys” to assist others in avoiding 3 in 1 traffic provisions;
  • vehicle operators are prohibited from employing the services of jockeys;
  • areas under bridges and overpasses cannot be used for any purpose except with the permission of the Governor;
  • nobody is permitted to direct traffic unless they have permission to do so; and
  • no illegal parking fares are to be collected or demanded.

Article 9 makes it an offence for passengers on public transport to dispose of rubbish, dispose of their chewing gum, spit, or smoke. Enforcement is clearly the key on the success of these provisions.

All pet owners need to take note that the Regulation requires them to register their pets with the appropriate authorities.
The Regulation also in effect prohibits prostitution by making it an offence to be a prostitute or a pimp and also an offence to use the services of a prostitute or pimp. However, more interesting is that the Regulation outlaws beggars, buskers, hawkers, and windscreen cleaners, which is a move that is decidedly anti-poor particularly when there is not a concurrent program to provide alternative sources of work or income.

Fines range from between IDR 100,000 and IDR 20 million and terms of detention range from 10 days to 180 days depending on the seriousness of the offence.
The Regulation repeals Regional Government Regulation No. 11 of 1988. The Regulation was approved and signed on 10 September 2007 but as yet has not been allocated a number.

Coastal Management

As an archipelago State it is surprising that Indonesia has never had specific legislation in place to manage such a vast and potentially long-term sustainable economic resource. The basic numbers here of 17,504 islands and more than 81,000 km of coastline serve to highlight the huge economic potential of proper and effective coastal management. The current legislative framework sees Indonesia’s vast coastal resources fall under Law No. 84 of 1992 on Spatial Planning.

Unfortunately, the Spatial Planning Law has focused almost exclusively on land-based spatial planning at the expense of any serious contemplation of Indonesia’s vast coastal resources. Commission IV of the House of Representatives (DPR) is currently debating the Bill on Coastal Management and if the Bill successfully passes the DPR then the new regulatory framework for coastal management will provide clearer mechanisms for the exploitation of coastal resources and legal certainty for investors. The exploitation of Indonesia’s coastal resources is expected to generate trillions of Rupiah in the future.

In the absence of a national regulatory framework on coastal management the regions have attempted to compensate for this deficiency by issuing Regional Regulations. To date 6 Regions have issued regulations; Gorontalo Province, Southeast Sualwesi Province, West Tanjungjabung Municipality, East Kotawaringin Municipality, Maros Municipality, and Gorontalo Municipality.

The Bill is comprehensive and addresses not only the exploitation of coastal resources but also issues of conservation, reclamation, and rehabilitation. The rights and access of the community is also regulated, as are the criminal sanctions for breach of the provisions. These criminal sanctions provide for fines up to IDR 2 billion and terms of imprisonment of up to 10 years.

The need for a specific coastal management law is likely to drive the passage of this Bill through the DPR.

Monorail to Nowhere...

The Minister of Finance (MoF) has issued Regulation No. 30/PMK.02/2007 to facilitate the implementation of Presidential Regulation No. 103 of 2006, particularly as it relates to the guidelines for implementing the government’s guarantee for additional borrowings by the government of Jakarta to ensure the completion of the Jakarta monorail project.

The provision of the guarantee is conditional on the fulfillment of certain conditions. The first of these conditions is that the guarantee must be approved by the House of Representatives (DPR) and will be accounted for in the State budget. The Jakarta Regional House of Representatives (DPRD) must approve the agreed guarantee, make provisions in the Regional budget for the agreed guarantee, and produce a verifiable report relating to the daily capacity of the monorail project.

The guarantee will cover passenger shortfall to an agreed maximum expenditure. The passenger shortfall in dollar terms cannot exceed USD 11.25 million per annum over a five-year period. It must also be noted that the Central Government’s shortfall obligations only kick-in after the Jakarta Government has made their proportional payments on the agreed shortfall level.

The Closing Provisions of the Regulation are explicit in stating that within 36 months of this Regulation being signed the monorail project must be in commercial operation with a capacity of 270,000 passengers per day. This is a critical provision because any failure to be in commercial operation within 3 years will render the guarantee void.

This Regulation has been in force since 15 March 2007.

National Holidays 2008

As is done every year the Ministers of Labor and Transmigration (Menteri Tenaga Kerja dan Transmigrasi), Religion (Menteri Agama), and State Administrative Reforms (Menteri Negara Pendayagunaan Apartur Negara) have issued a Joint Decision (Decision) to stipulate the National Holidays and Group Leave for 2008. Also similar each year is the premise for the issue of this Decision; to ensure the effectiveness and efficiency of working days and to increase productivity over periods of national holidays.

The Decision sees an increase in the total number of days that employees will be able to take off from 19 days in 2007 to 23 days in 2008. These 23 days comprise of 15 days of National Holidays and 8 days of Group or Joint Leave. The joint leave is to be counted against annual leave and in accordance with prevailing laws and regulations. However, with most employees enjoying an annual quota of just 12 days annual leave then there is a possibility that they may only have 4 days annual leave to use at their own discretion as the rest is regulated by the Government as Group Leave.

The exact dates of Ramadhan, Idul Fitri, and Idul Adha are to be determined by the Minister of Religion at a later date. These dates will then be announced in a specific Minister of Religion Regulation enacted for that purpose.

The Decision includes an Attachment that lists the National Holidays and Group Leave for 2008. The Decision was issued on 30 May 2007.

09 September 2007

Welcome

Seize the Day!

Welcome to this blog...The title is simple and it is so for simple reasons. There is much happening in Indonesia and to say that "these are interesting times in which we live" is an extreme understatement of the reality that is Indonesia.

The real question that confronts Indonesia and its people is: "Are we ready to 'seize the day' or are we going to let that day pass us by?" The underlying theme of this blog is to confront this question head on by not only challenging ourselves to seize the day but to actively encourage others to seize each and every day with us!

Our work and that of our readers, who will ultimately be collaborative contributors to this blog, will never be done...so as long as there is cyberspace and so long as there is blogging we will be here...

Once again welcome to our world!