Caveat - Volume April-May 2013 - LBH Masyarakat by LBH Masyarakat

LBH Masyarakat presents you the April May 2013 edition.

EDITOR'S NOTE

HUMAN RIGHTS, LAW, AND POLITICS

Examing Judicial Review in the Indonesian Criminal Justice System

The process of law enforcement in Indonesia has had a bad record such as in the case of Sengkon and Karta. The two were accused of committing theft and murder of husbandandwife Sulaimans that took place in Bekasi in 1974. Bekasi District Court then sentenced Sengkon to 12 years of prison and Karta to 7 years.

From 21 to 26 May 2013, Asia Catalyst – an NGO based in New York – held the 2013 Right to Health Advocacy Training in Bangkok. Asia Catalyst provides management and advocacy training to grassroots groups in Asia which are working to promote the right to health.

HUMAN RIGHTS, HIV, AND DRUG POLICY

Right to Health Advocacy Training, Asia Catalyst 2013

A Letter From Jember

FROM OUR ARCHIVE

A Story of Aldo

Volume April - May 201 3 http://www.lbhmasyarakat.org

MANAGING EDITOR: Ricky Gunawan

EDITORIAL BOARD:

Andri G. Wibisana, Dhoho Ali Sastro, Ajeng Larasati, Antonius Badar, M. Afif Abdul Qoyim, Riki Efendi.

FINANCE AND CIRCULATION: Editor's Note ..................................................... 3 HUMAN RIGHTS, LAW, AND POLITICS........... 4 Examining Judicial Review in the Indonesian Criminal Justice System

HUMAN RIGHTS, HIV, AND DRUG POLICY..... 9 Right to Health Advocacy Training, Asia Catalyst 2013

FROM OUR ARCHIVE ..................................... 11 A Story of Aldo

A LETTER FROM JEMBER ............................ 1 4 To Bribe or Not To Bribe

Ahmad Zaki, Herlina

REVIEWER: Miki Salman

DESIGN AND LAYOUT: Vimala Putta

ADDRESS:

Tebet Timur Dalam III, No. 54A Jakarta 12820, INDONESIA Phone : +62 21 830 54 50 Fax : +62 21 8370 99 94 Email : contact@lbhmasyarakat.org caveat@lbhmasyarakat.org Website: www.lbhmasyarakat.org

CAVEAT

is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta, Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced without prior permission of the LBH Masyarakat. This publication is supported by the Levi Strauss Foundation. The content of this publication does not necessarily reflect the opinion or position of the Levi Strauss Foundation.

CAVEAT welcomes any feedback and contributions. If you are interested in contributing a guest

editorial piece or article, please contact us at contact@lbhmasyarakat.org or caveat@ lbhmasyarakat.org LBH Masyarakat welcomes any financial contribution for the development of CAVEAT. Name Bank Branch No.Acc. SwiftCode

: Lembaga Bantuan Hukum Masyarakat : Bank Mandiri : Tebet Timur, Jakarta, Indonesia : 1 24–000–503–6620 : BMRIIDJA

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In this edition, we present you – as usual – four columns of articles. In Human Rights, Law, and Politics, Muhammad Afif – LBH Masyarakat’s public defender – examines the pros and cons of the concept of judicial review (PK) in the Indonesian criminal justice system. In his article entitled Examining Judicial Review in the Indonesian Criminal Justice System, Afif first investigates the history of PK and then analyses its issues. One of these limitations is the fact that PK can only be done once. This, he argues, conflicts with the notion of justice. Afif also questions the inconsistency of PK in practice, as the prosecutor may sometimes file for PK where on paper they do not have the legal standing to do so. In the Human Rights, HIV, and Drug Policy column, Ilham Sofiar – a caseworker at LBH Masyarakat – shares his experience in attending the Right to Health Advocacy Training organized by the Asia Catalyst in May 2013. Meanwhile in the From Our Archive column, our casework coordinator Antonius Badar reports on our experience in assisting a juvenile in a narcotics case in A Story of Aldo. Fortunately Aldo (not his real name) managed to be returned to his parents despite a difficult struggle in the legal process. Dhoho Sastro – Director of the LBH Masyarakat Jember Office – has written an article entitled To Bribe or Not To Bribe in A Letter from Jember. In his article Sastro shares his insights on bribery – a common phenomenon and frequently believed by our clients to be an effective way to win a case. Bribery (or extortion) in the Indonesian judicial system is like a bad scent that everyone can smell but no-one can find the source. Sastro’s experience with the LBH Masyarakat Jember Office proved that bribery fails. Criticisms or any comments as always are appreciated to improve CAVEAT.

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HUMAN RIGHTS, LAW AND POLITICS

Examining Judicial Review in the Indonesian Criminal Justice System Muhammad Afif Abdul Qoyim1

Background The process of law enforcement in Indonesia has had a bad record such as in the case of Sengkon and Karta. The two were accused of committing theft and murder of husbandandwife Sulaimans that took place in Bekasi in 1974. Bekasi District Court then sentenced Sengkon to 12 years of prison and Karta to 7 years. For six years they were incarcerated in Cipinang Prison until one day another convict, Gunel, also incarcerated in Cipinang Prison, came forward and confessed that it was he who murdered the husbandandwife couple. With regard to this confession, the Bekasi District Court sentenced Gunel to 12 years of prison. However, the fact that there was bow new evidence, that is, the discovery of the actual perpetrator, did not automatically meant that Sengkon and Karta could walk free immediately. The situation created a legal vacuum as to the requirements and procedures for judicial review (peninjauan kembali) as a mechanism to correct prior court decisions. The situation was immediately responded by the then Head of the Supreme Court, Prof. Oemar Seno Adji, who also acted as the Head of the Panel of Judges along with Busthanul Arifin, and Purwosunu, as members of the panel in the judicial review of the case of Sengon and Karta. The outcome of the judicial review is reflected in the Supreme Court decision number 66/PK/KR/1980, of 31 January 1981, which, essentially, ruled that Sengkon and Karta were proven not guilty. The silver lining from the Sengkon and Karta case was a lesson that the early reformed Indonesian criminal justice system giving a mechanism for judicial review in Law Number 8 of 1981 (Criminal Procedural Code). Although, initially the procedure took into consideration the Supreme Court Regulation Number 1 of 1980 regarding Judicial Review of Decisions with Permanent Legal Force. The Criminal Procedure Code (KUHAP) elaborates the mechanism for judicial review (PK), including the basis and reasons for PK application. Generally speaking, PK is only limited to certain subjects, namely those who are entitled to applying for PK; the convicts or their heirs as regulated in Article 263 (1) of KUHAP. 1Muhammad

Afif Abdul Qoyim is Advocacy Staff at Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat).

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The object of a judicial review is legal decision with permanent legal force as stipulated in Article 263 (1) of KUHAP. Whereas the bases for PK are limited to three according to Article 263 (2) of KUHAP, namely: a. “if there is a new situation that would lead to a strong inference, that if such situation was known at the time of the proceedings, the outcome would be an acquittal of all legal charges or [that] prosecutor’s charges would not be acceptable or with respect to the case a lighter criminal provisions would be applied; b. if in the various decisions there are statements that something has been proven, however the matter or situation as the basis or reason for the decision that was declare proven, apparently created a contradiction; c. if the decision clearly demonstrated a clear judge’s error or mistake”. From the above stipulations, one can infer that a decision that factually contains errors can be corrected. This concept is consistent with Taufik Rahayu Syam who proposed several considerations to reopen the door for judicial review, including: 1. “Even though a case has been decided at the first, appellate and cassation levels that has permanent legal force, there are concerns that there may be errors in the examinations because human nature although he is a judge is not free from error and negligence and shortcomings; 2. It may be that when a case is decided, apparently there are elements that are unhealthy such as lies, and deceptions so as to lead to injustice to one of the parties in the case; 3. It would be improper to maintain a decision that has juridical flaws in the life of society, so that it would be proper to provide an extraordinary opportunity to parties that are harmed by filing a PK application in the case that already has a permanent legal force.”

Analysis: Problems in Judicial Review Practice Limitation of Judicial Review

Article 268 (3) of KUHAP regarding the procedural code about judicial review stipulates that PK can only be filed once. This provision basically limits PK filing to only once. Filing for PK more than once is not only impossible but in practice the majority of PKs end up with the verdict “reject” as experienced by Joko Tjandra in the Bank Bali cessie case number: 100/PK/Pid.Sus/2009, and the former Governor of Bank Indonesia Syahril Sabirin in case number: 167 PK/Pid.Sus/2009, as well as the capital cases of Fabianus Tibo and company. The existence of such decisions provide more legitimacy regarding limitation of PK as reflected in Article 24 (2) of Law Number 48 of 2009 Regarding Judicial Authority, which reads: “with respect to judicial review decisions [there] cannot be [another] judicial review”. Based on the above law, many justice seekers who feel that their constitutional rights have been harmed [have] filed for constitutional review of PK limitation that is limited to only once with the Constitutional Court. One such effort was by the former Head of the Corruption Eradication Commission, Antasari Azhar, in the case number: 34/PUUXI/2013. In the correction to his second submission dated 25 April 2013, Antasari conveyed that “we feel that if PK can only be

done once, which thus far had been said for the sake of legal certainty, we feel this is very unjust. Because the legal certainty actually, in our opinion, has already happened since the cassation decision is inkracht, ordinary legal efforts. PK, [is an] extraordinary legal effort, so that PK does not postpone the execution, such is the meaning. So that nothing is disrupted [as far as] the due process of law [goes] with respect to a case”.

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With respect to that request, there are pros and cons from several legal experts. Those who support limiting PK are basically of the opinion that applying for PK more than once does not provide the guarantee for legal certainty as mandated by Article 28 D (1) of the 1945 Constitution of the Republic of Indonesia. Additionally, repeated application of PK will injure the principle of a simple, expedient, and affordable criminal justice to avert a protracted court process. Whereas those who reject limiting PK essentially argue that [limiting] PK application to only once goes against the principle of justice, as mandated in Article 24 (1) of the 1945 Constitution of the Republic of Indonesia, which provides that judicial authority is independent in organizing the judiciary to uphold the law and justice. On the other hand, the regulation [that limits] PK to only once will only obstruct the right to obtain justice for convicts sentenced to death, assuming that new evidence is to be found later while first PK has been filed. The above polemics in practice do not only apply to Supreme Court judges in adjudicating second PK. This experience can be seen in the case of Nyayu Saodah Binti Alm. K.A. Kosim (Grandma Saodah) in the case number: 183 PK/PID/2010. In this case, the Supreme Court accepted the second PK application by Grandma Saodah. The first PK had been filed by the General Prosecutor beforehand. The reasons used by Grandma Saodah in filing her second PK were as follows; a. That the first PK filed by the General Prosecutor with the case number: 41 PK/Pid/2009 there was a clear mistake made by the panel of judges. This is because the decision in the civil case number: 532/Pdt/2004/PT.BDG Jo. Cassation Decision number: 1434 K/Pdt/2005 that served as the basis for the Prosecutor General’s filing has been annulled by the PK decision number: 803 PK/Pdt/2008; b. That PK I by the General Prosecutor does not have a solid basis even though the argument used was for the public interest as practiced in the case of Muktar Pakpahan. Because basically this case is purely a civil case (private) and has nothing to do with public interest. With the above reason, the Supreme Court in its consideration implicitly referred to the action of the General Prosecutor in filing for PK that was seen as closing the door to justice for the convict/her heirs to file for PK. Thus, the Supreme Court needed to consider the PK filed by the convict. Furthermore, the bases proposed by Grandma Saodah have been granted by the Supreme Court and mentioned that there were various decisions that were contradictory in one case as regulated in Article 263 (2) and the Supreme Court Circular Number 10 of 2009 point 2 which in essence provides that [if] in one case object there are two or more contradictory decisions then PK can be filed. This consideration basically is related to the existence of the civil decision in the case number: 803 PK/Pdt/2008 as the decision that annulled the decision number: 523/Pdt/PT.BDG Jo. 1434 K/Pdt/2005. The last two decisions served as the basis for the General Prosecutor to file PK number: 41 PK/Pid/2009. Thus, with the PK decision in the civil case number: 803 PK/Pdt/2008 that was made as the basis for PK by Grandma Saodah, the Supreme Court in its verdict, annulled PK Decision number: 41 PK/Pid/2009 Jo. Decision number: 1956 K/Pid/2007 Jo. Decision number: 296/Pid/B/2006/PN.BDG. The case of Grandma Saodah above is a fact that illustrates that multiple filing for PK can be justified with the condition that the basis for filing the judicial review is that there are contradictory decisions in one case object as provided in Article 263 (2) letter (b) KUHAP Jo. Point 2 SC Circular Number 10 of 2009.

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In addition to the case of Grandma Saodah there had also been cases where PK was filed by parties without the legal standing as parties entitled to file PK. This can be seen in case number: 1 PK/Pid/1984, of 20 February 1984. In that case the person filing for PK is the owner of evidence, namely, the ship that was previously used by other parties to commit the crime. In that case it can be concluded that the owner of the evidence (the ship) could file for PK as he was involved in the commission of the crime committed by the convict. The Supreme Court, therefore, in its decision stated that “the judicial review cannot be accepted” with the reason that “the PK applicant is not the convict or his heir as provided in Article 263 (1) of KUHAP”. In the above case, number: 1 PK/Pid/1984, it can be implied that the closure of opportunity to file for PK for the convict/heirs is because the party who first applied for PK is the owner of the evidence who legally does not have a legal standing as PK applicant subject. The fact that there were efforts by the evidence owner applying for PK clearly takes hostage the convict’s/heirs’ right to justice. The legal event resulted from the regulation of PK in KUHAP that only limits PK to once as provided in Article 268 (3) of KUHAP. The variety of cases above has basically gone against rules regarding limitation of PK that can only be done once. Even though it still considers the basis and particular situations of why PK is filed more than once.

PK application by General Prosecutor The Supreme Court in 1996 made a spectacular legal breakthrough in the criminal justice system. The Supreme Court accepted a PK application filed by General Prosecutor in the case of Muktar Makpahan, case number: 55 PK/Pid/1996, of 25 October 1996. In the legal standing of the PK filed by the GP, the Supreme Court did accept. Which means that formally the PK application had met the requirements as provided in the KUHAP. Whereas, as specified in Article 263 (1) of KUHAP, the party that is entitled to file PK application is limited to certain legal subjects, namely the convicts or his/her heirs. Explicitly, the provision does not say the GP as a party entitled to file PK application. However, the provisions regarding parties entitled to file PK were again set aside by the Supreme Court. However, in the case of H. Mulyar Bin Samsi, case number: 84 PK/Pid/2006, the PK application filed by GP, the Supreme Court formally rejected the PK application. Because KUHAP, as specified in Article 263 (1) affirmatively and in a limited fashion only specified that the convict or the heirs are parties entitled to apply for PK. With regard to the role of GP in applying for PK, the Supreme Court considers it a violation to the application of procedural law. Some of the decisions above contain legal contradictions. In the case of Muktar Pakpahan, the Supreme Court accepted the legal standing of GP as a party entitled to apply for PK, while in the case of H. Mulyar Bin Samsi, the Supreme Court rejected the legal standing of GP as the party applying for PK. This fact indicates that the PK practice that exists today often invites and contains problem. On the other hand, relying on the case of Muktar Pakpahan regarding the acceptance of legal standing of GP as a party to file for PK, GP often referred such case when they submit a PK application. This can be seen in the case of Soetiyawati alias Ahua Binti Kartaningsih in case number: 15 PK/Pid/2006. In that case, again, the Supreme Court formally accepted the legal standing of GP in filing PK.

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Despite all this, the chances of GP to apply for PK are not dominated by the convict/heirs, because the provision in Article 263 (3) of KUHAP provides an indication for GP to file PK. The presence of this opportunity is a logical consequence because the convict/heirs pragmatically would not possibly file PK with respect to a decision that benefits them. With respect to this situation, one can then imply that the provision of Article 263 (3) provides an opportunity for GP to file PK.

Conclusion and Recommendation

Conclusion

Provisions regarding filing extraordinary legal efforts, namely, judicial review are clearly and explicitly stated in the Criminal Procedure Code (KUHAP). Along the way, the provisions regarding PK were not free from problems and debates. At least the polemics that developed pertained to the quality of the legal norms and application of the legal norms themselves. The problems become more evident in PK application that is only limited to once as stipulated in Article 268 (3) of KUHAP. This one足time limit to PK application appears to be a problematic legal issue. This context can be seen from the pros and contras that appeared among legal experts with regards to the doctrine of legal certainty and the vision of justice. Those who support the limitation to PK argue that giving more than one opportunity to apply for PK will not ensure the realization of legal certainty as reflected in Article 28 D (1) of the 1945 Constitution. Whereas those who reject the limitation of PK application argue that the justice process shall be conducted not only to gain legal certainty but to achieve justice.

Recommendation

Even though the provisions regarding limitation of PK in practice are often not followed, it does not mean that the filing of PK can be done repeatedly. This is considering the principle of legal certainty in the enforcement of law. However, the spirit of legal certainty alone is not enough. Because it needs to take into account the value of justice as the essential goal of law enforcement. This context is aimed for the Supreme Court as the institution that guards justice that shall maintain harmony between legal certainty and the goal of justice. Not applying justice certainly would mar the enforcement of law itself at the same time stain human rights that apply universally.

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HUMAN RIGHTS, HIV AND DRUG POLICY

Right to Health Advocacy Training, Asia Catalyst 2013 From 21 to 26 May 2013, Asia Catalyst – an NGO based in New York – held the 2013 Right to Health Advocacy Training in Bangkok. Asia Catalyst provides management and advocacy training to grassroots groups in Asia which are working to promote the right to health. The participants came from nine countries in the Asia Pacific region: Indonesia, China Tibet, Vietnam, Hong Kong, Cambodia, Australia, India, Myanmar and the Philippines. On the first day of training, the participants discussed rightsbased advocacy together with representatives from relevant government institutions. They analyzed some problems and used strategic thinking skills to seek solutions. Each participant shared information about their experience in advocacy and the successes and constraints they had encountered in their country. A common problem experienced in most of the communities was the denial of their rights as citizens. The participants explained that community members are often stigmatized and discriminated by the government. For example, in Nepal and India stigma and discrimination are still experienced by people living with HIV when accessing health services. An overview of human rights and UN human rights mechanisms was discussed on the second day of training. In this session, the participants discussed human rights issues that were most relevant to their communities, including useful UN human rights mechanisms and how they could be used for advocacy purposes. This session was followed by a discussion about how to learn and apply the strengths, weaknesses, opportunities and threats of the advocacy plan and what kind of benefits this might have for the organization. After this, the participants were given materials on the Global Fund. The participants learnt about the issues surrounding how the Global Fund works and its new funding initiatives. It is hoped that the participants will use the Global Fund funding mechanism for their organizations. The third day began with a discussion on the purpose of advocacy, how to develop an advocacy framework and define advocacy goals in a more specific way. It was followed by a session on how to mobilize communities, examined in the context of participants’ reallife experiences with community advocacy for marginalized and criminalized groups. The participants exchanged stories and learned from each other. One example was the work of the Thai Drug Users Network (TDUN), which was established in 2002 to promote and provide education on human rights and harm reduction for people who use drugs. Their work aims to oppose the ‘war on drugs’ approach that hinders the human rights of people who use drugs and to empower drug users in Thailand through advocacy. Another example was the work of the Asia Pacific Network of People Living with HIV (APN +), which was established in 1994 in Kuala Lumpur with the secretariat office in Bangkok. APN+ aims to create a better world for people who are HIV positive, by trying to reduce stigma and discrimination and improve access to treatment. Their activities include advocacy and community mobilization, intellectual property rights and access to more affordable medicines.

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Following this, the participants learned more about the opportunities that exist in advocacy support and technical agencies or UN commissions (e.g. UNAIDS). This day concluded with a site visit to an NGO that fights for the rights of sex workers, namely the Asia Pacific Network of Sex Workers (APNSW) in Bangkok. This visit aimed to teach participants about the work done by the organization, which focuses on using art in advocacy and empowering sex workers through the handicrafts they make. On the fourth day of training, the participants discussed how to identify and access targets and allies in connection with the advocacy plan that they would make. The participants then had the opportunity to consult with experts to identify the major challenges in writing an advocacy plan. This discussion continued on the fifth day. It focused on how to evaluate risk and further develop the advocacy plans that had been made. The participants then had the opportunity to discuss how to write an abstract for the 2013 International Congress on AIDS in Asia and the Pacific (ICAAP), which was to take place from 18 to 22 November 2013 in Bangkok. On the last day of training the participants had to devise an advocacy action plan to be implemented. They had to consider the possibility of a regional or national level of cooperation and how to communicate between future participants. The health and rights advocacy training concluded with a summary of the discussions and an evaluation of the training to understand what had been done well, what had been achieved and which areas needed improvements. The participants then met again to discuss their progress on their advocacy plans in November 2013.

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FROM OUR ARCHIVE

A Story ofAldo Antonius Badar1

Once again, a child from a poor socioeconomic background has become trapped in illicit narcotic trafficking in Jakarta. In May 2013, a sixteen year old boy named Aldo (not his real name) appeared before the Central Jakarta District Court. Aldo was a student in Taman Siswa Senior High School when he was arrested by the police for his alleged involvement in drug trafficking. LBH Masyarakat represented Aldo throughout the trial process because of his age and the fact that he comes from a poor family. In addition, the allegation seemed unclear because Aldo was tricked in a situation that made him have to face the legal process. The prosecutor demanded two years imprisonment for Aldo. The judges found Aldo to be guilty but returned him to his parents, requiring them to report to the Central Jakarta Correctional Center once a month for a year.

Aldo Was Subject to Significant Peer Pressure It is common knowledge that teenagers frequently face peer pressure during adolescence. It appears that the influence of peers – and the desire to be socially accepted – far exceeds that of parents, teachers or religion. This influence can, of course, be positive or negative. According to the American Academy of Child and Adolescent Psychiatry, the majority of teens with substance abuse problems began using drugs or alcohol as a result of peer pressure. It is clear that peer pressure played a significant role in Aldo’s case. Aldo was regarded in his neighborhood and school as a polite, wellbehaved person. He was not a troublecauser, so his arrest came as a surprise to the community. Aldo’s parents divorced when he was in elementary school and, due to the lack of harmonization in his family, Aldo tended to spend much of his time out of the house. He regularly went to an internet café with friends after school. This group included seniors who had already graduated from Taman Siswa Senior High School and who lived in the area. As a junior at his school, Aldo was keen to earn the respect and friendship of the more senior students. This made him particularly vulnerable to pressure exerted by the older students to engage in risky behaviour. This issue of peer pressure is in line with the research carried out by the Central Jakarta Correctional Center as part of their recommendation to the judges. They were of the view that Aldo’s parents were able to take care of him well but the older students were a negative influence, encouraging Aldo to participate in illegal activities. The Correctional Center also said that Aldo is an emotionally unstable kid – which means, he could be affected by anything. 1Antonius

Badar is Case Advocacy Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat)

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As a junior at his school, Aldo was keen to earn the respect and friendship of the more senior students. This made him particularly vulnerable to pressure exerted by the older students to engage in risky behaviour. This issue of peer pressure is in line with the research carried out by the Central Jakarta Correctional Center as part of their recommendation to the judges. They were of the view that Aldo’s parents were able to take care of him well but the older students were a negative influence, encouraging Aldo to participate in illegal activities. The Correctional Center also said that Aldo is an emotionally unstable kid – which means, he could be affected by anything.

Aldo Returned the Marijuana to its Owner In this case, Aldo was influenced by his friend Reza to keep marijuana. Reza is 20 years old and a former student at Aldo’s school. The two knew each other well from spending time together at the internet café. As an alumnus, Reza had a great deal of power at school. One day, Reza asked Aldo to temporarily keep a small plastic bag of marijuana for him. As Aldo lived near the Taman Siswa Senior High School, Reza would easily be able to find him. Aldo was unwilling to take the marijuana, but was persuaded by Reza who promised that he would take it back. On 16 March 2013 Aldo attempted to return the marijuana to Reza. They made an appointment to meet at 4pm in Menteng. Eager to not disappoint Reza (and to return the marijuana as soon as possible), Aldo arrived first. Reza arrived with his friend Saefruloh and went to talk to Aldo in private. They were unaware that three local residents were observing their movements. After returning the marijuana to Reza, two guys suddenly grabbed Aldo and another tried to seize Reza. Reza threw the marijuana in a ditch and managed to escape. Aldo and Saefruloh were taken to the police office but Saefruloh was released because of his lack of knowledge of the incident. At the Matraman Police Office, Aldo was interrogated and arrested, as he was the only person who knew about the drugs. Based on the results of the police laboratory examination, the packet contained less than 10 grams of marijuana. He was charged with possession of the marijuana, to be heard at the Central Jakarta District Court.

The Hearing Was Not Aimed to Acquit Aldo, But to Give Deterrence As his lawyer, LBH Masyarakat worked to assist Aldo during the legal process in order to ensure that the hearing was conducted fairly as mandated by the Law on Juvenile Justice. However, ensuring that the best interests of the child are prioritized is one of the biggest challenges in these types of cases. There were two targets we wanted to achieve to fulfill Aldo’s best interests in this case. Firstly, LBH Masyarakat asked for bail in order to avoid Aldo dropping out of school. Secondly, we argued for an appropriate and effective form of punishment that would not involve time in prison. Sometimes the ability to act in the best interests of children is hampered by the limited period of investigation. Until a final decision is reached by the court, children and adults who have committed a criminal offence face a different legal process. For juveniles, the maximum period of remand in police custody is twenty days and it can be extended by a maximum of ten days. At the prosecution level, it is a maximum of ten days, and can be extended by up to fifteen days. At the court hearing, they have up to fifteen days, which can be extended for a maximum of thirty days.

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Another thing that might infringe the best interests of juvenile offenders is the large number of cases handled by the police, prosecutor and judges. With the huge number of cases they manage, they could forget to prioritize and expedite juvenile cases. What happens in practice is usually that juvenile cases are ignored and, as a result, their right to a speedy resolution of their trial is infringed. LBH Masyarakat tried to get bail for Aldo so he could continue his schooling. However, it failed because of the limited period of detention. Article 45 Law No. 3/1997 about Juvenile Justice states that: “Basically arrests can be made for the purpose of examination, but the detention of children must also consider the interests of the child relating to his/her growth and development, including the physical, mental, and social interests of the child and society.” Thus, LBH Masyarakat believes that the legal process can run in parallel with Aldo’s schooling. The police refused to grant bail because they argued that Aldo’s dossier of the case was already finished and would be given to the prosecutor soon. If they granted bail, it would be a waste of time because he would be arrested again when his dossier was sent to the prosecutor. The same reason was given by the prosecutor until the hearing was held and because of that Aldo remained in detention and could not continue his study until the end of the legal process. However, LBH Masyarakat continued to work for Aldo’s best interests during the hearing and in trying to obtain the ideal court decision. During the hearing, LBH Masyarakat focused on proving that Aldo’s involvement in this case was a result of pressure exerted by his friends. LBH Masyarakat also requested that the judge consider the best interests of the child and not send Aldo to prison. Finally, LBH Masyarakat succeeded in convincing the judge. The judge decided to return Aldo to his parents on the condition that they report to the Central Jakarta Correctional Center once a month for a year. Basically, sanctions that can be imposed on children are no different than other criminal cases. However, the Law on Juvenile Justice provides additional possible sanctions such as the deprivation of certain goods or payment of compensation; or an action returning the child to their parents or to the state or social affairs ministry for education and job training. Another important outcome is that Aldo can continue his study because he shall not be imprisoned.

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A LETTER F R O M JEMBER

To Bribe or Not to Bribe Dhoho Ali Sastro1

Judicial corruption does not seem to pick and choose where it will occur. It can happen in big cities like Jakarta or a small city like Jember in the province of East Java. People may find it difficult to prove that judicial corruption exists, but one can feel that it is there. Every time we advise our clients, we tell them not to bribe or get involved in any kind of judicial corruption. But often they do not listen. While our clients are detained, they meet with other detainees who tell them stories that corruption can actually work. They hear that bribing judges may lessen the sentence or perhaps may result in acquittal. Though, of course, there are more stories that demonstrate otherwise. It is difficult for us to prevent them from engaging in bribery. Although we always inform them of the consequences of getting caught for bribery, our clients are often laughed at by other detainees or prisoners if they choose not to bribe and go the legal way. But this time, we have managed to show that bribing fails. On a recent visit to a prison in Jember I met four teenagers in one of the blocks for juveniles. A television which was screening a film was turned off so we could have an undisturbed conversation. We all sat on the floor. These four teenagers had all been involved in the same crime, although they had vastly different appearances. Robert, the self足confessed mastermind of the theft, was of average height like other junior high school students. Sporting tattoos on both arms and a hardened manner of speaking, it was difficult to believe that this was his first crime. Roger, another suspect, had darker skin and a big scar between his right eye and nose, obliterating almost half of his right eyebrow. He claimed to have had the scar from birth, not from any recent trouble.

1Dhoho

Ali Sastro is Director of LBH Masyarakat Jember Office

CAVEAT | April - May 2013

Ian was the smallest of the four. He was not even fifteen. Although he is in the second year of junior high he did not go to school at all last year. “I will not expel him because I have my personal debt to his father,” said the principal without further explaining what this might be. “Other teachers are against my decision,” he added. Ian looked skinny but his eyes were sharp and he spoke as if he was not scared of anything. Thomas, the fourth teenager, looked different too. He was larger than the others, and moved more slowly. All of the youths admitted that they had committed theft on a hill near their houses. “That hill is rather quiet and often used for couples to just hang out. We went up there and met these two people who were on a date. And we just asked them for money. Thomas was pointing the knife at them,” said Ian smoothly. “It was Robert’s idea and the knife belongs to Roger,” he added without me asking. I then asked him: “So what did you do?” “I was waiting on our motorbike. It was burnt by the people who caught us Sir,” Ian said. Their act indeed caused mass outrage in the community. People were angry because they thought that the four teenagers were the ones who stole motorbikes the day before. “In the police station we were crossexamined with the owner of that bike. He said it was not us who stole his bike,” Ian said firmly. “This is all my fault Sir. I was the one who asked them to get involved,” Robert said with a gesture that he was willing to take all the responsibility. Our conversation that afternoon went well. They were all able to answer my questions smoothly as if they had preprepared their answers. There was no fear or regret on their faces. “How about the trial. Are you guys ready for it?” I asked them. “Well, I guess we just have to face it, right Sir?” Ian replied. “So you guys are not afraid of the punishment?” “No Sir.”

The bribery The hearing was held a few weeks later and the teenagers attended court with their families. Since we monitored their cases, we always advised them not to bribe the police, prosecutors or judges. We informed their families of this as well. We warned them that if they get caught bribing officials within the law apparatus, they are likely to receive a harsher sentence. Despite this, one of the fathers calmly told us during the hearing, “I have given two million rupiah to the guy from prosecutor’s office. That’s for, you know, just thanking him for his ‘support’ to my son in prison. And also it’s for the transportation fee. I think that’s alright.” We were shocked. We were terribly surprised. This shows that bribery is incredibly commonplace in society and is believed to result in lighter sentences. “You don’t need to take care of them anymore Sir. I think we’re going to be fine,” he added. At the next hearing, nothing had changed. The young people did not show any fear when facing the trial. They did not seem to care about anything as if they knew that they were guaranteed to get a lenient sentence. They did not even spend time preparing a defense note. “You need to make your defense.

CAVEAT | April - May 2013

It will be helpful for you to show the judge why you committed the crime and that you regret it,” one of the volunteers at the LBH Masyarakat Jember Office explained. However, after the prosecutor delivered the demand letter, the teenagers did not submit anything to the judge. Even though they had not prepared anything, the judge adjourned the hearing for the following week so they could submit their defense note. This was odd because usually after the demand letter has been read by the prosecutor, the judge will immediately question the defendant and consider their statement as a defense note rather than adjourning the hearing to hear the defendant’s defense note. In this case, the judge adjourned the hearing for one week. But, even though they were given that opportunity, the teenagers once again failed to prepare a statement. They only said before the judges that they asked for lenient sentences and that they felt remorse. After that the hearing was adjourned for the judge to deliver the verdict. This is another odd practice. When the judgment was delivered, the result was surprising. The judge sentenced them to sentences equivalent to those demanded by the prosecutor. The only difference was the reduction of fifteen days for the two teenagers who were still at school. The parents were angry and disappointed. It turned out that after the demand letter was read, there was an attempt to ‘buy’ the judgment but they could not reach an agreement. “Initially, it was two million rupiah per person, but then they lowered the price to one million per person. But we don’t have any money left,” said one of the parents. But now the judgment has been made, and it is final and binding as the families did not attempt to appeal. What this case shows us is that the trial has lost its meaning. It is no longer a means for people to acknowledge their fault and to take responsibility for it by undertaking the judgment. Instead, it has become a place where people trade their freedom. Because people are so convinced that they can buy their freedom, they do not take the opportunity to seriously express remorse. They hope that money can help them avoid the consequences of committing a crime. But the truth speaks differently, and that remorse comes later. “I wish we hadn’t paid them from the beginning, I am sure the situation would have ended differently,” one of the parents closed our conversation with that day.

CAVEAT | April - May 2013