- Poor Judicial Process in Indonesia: The Government Should Not Carry Out Execution
- Presidential Regulation No. 38 Year 2015: New Legal Regime for Infrastructure Provision
- Death End for Mary Jane Veloso: Acquittal from Death Penalty
- Manahan Sitompul Replaces M. Alim as Constitutional Court Justice
- Fights Between Members of Parliament in the Compliance Context of the Parliamentary Act and Code of Ethics
Poor Judicial Process in Indonesia: The Government Should Not Carry Out Execution
The government executed eight death row prisoners, despite protest from the international community. They were Brazilian Rodrigo Gularte, Indonesian Zainal Abidin, Australians Andrew Chan and Myuran Sukumaran, and Nigerians Sylvester Obiekwe Nwolise, Raheem Agbaje Salami, and Okwudili Oyatanze, plus Ghanaian Martin Anderson. As for Mary Jane, a prisoner from The Philippines, her execution was postponed at the last minute in response to The Philippine’s President Benigno Aquino’s request, based on the recent developments on the human trafficking cases the Philippine law enforcement has. The execution by the Indonesian government brings back the debate on the imposition of the death penalty. However, it should be noted that both camps who support or disagree believe that the death penalty cannot be imposed unless the defendant has gone through a fair trial.
The fact is that a fair trial demand is too much for these people. Rodrigo Gularte, for example, is diagnosed as a schizophrenic, but the authorities when asked to disclose Gularte’s diagnosis refused to respond. Under Article 44 of the Indonesian penal code, a person who has a mental disorder cannot be sentenced for their criminal act. In the case of Mary Jane, the lawyer only accompanied her during the trials and throughout the process she only understood half of the events since she could only speak in Tagalog; plus the state was unable to find a competent interpreter for her. The role of Mary Jane as a victim of trafficking could not be counted as a fact so the judges’ considerations did not match the material truth. As for the case of Zainal Abidin, he was not provided with a legal counsel since the investigation process by the police, but it was written differently in the police report. The report also mentioned that Zainal acknowledged his activity of buying and selling marijuana despite Zainal consistently denying this allegation. Unfortunately, judges during the trial ignored Zainal’s statement that the report was arranged by the police, who also committed torture against him. Similar to Mary Jane, Sylvester Obiekwe Nwolise also did not have a translator available for him.
The principle of fair trial in all cases is a necessity that cannot be compromised, especially related to cases with death as the maximum penalty. The practice of torture by the police, lack of facilities, and inadequate legal assistance given to death penalty inmates were only little pieces of many cases that violate fair trial. The judges’ decision should be based on undoubted evidence and whether or not the defendant went through a fair trial. If new evidence comes to light about the case and the defendant is not guilty, nobody could restore the lives that have been lost or compensate the convict. Based on this logic, the right solution should be that death as the maximum penalty should not be imposed in Indonesia since the legal system is still implemented wrongly. (ED)
Presidential Regulation No. 38 Year 2015: New Legal Regime for Infrastructure Provision
Last month, President Joko Widodo of Indonesia signed a new regulation named Presidential Regulation No. 38 Year 2015 on Public-Private Partnerships on Infrastructure Provisions (PPP Regulation). This is a new regulation regime of infrastructure provisions. It replaces the previous regulation of Presidential Regulation No. 67 Year 2005 that has been amended several times. The new PPP Regulation tries to accommodate lack of provision from previous regulations.
What matters the most from this new PPP regulation? First, the changing of the term PPP (in Bahasa Indonesia). Previous regulation used the phrase “Kerjasama Pemerintah dan Swasta (KPS)”, while the new regulation is using the “Kerjasama Pemerintah dan Badan Usaha (KPBU)” as a synonym phrase to Public-Private Partnerships. This term change is important because PPP does not only cover cooperation between government and private companies, but also cover state-owned enterprises or regional-owned enterprises. Second, the expansion of the PPP definition in Bahasa Indonesia can be understood after reading the entire content of the regulation. The current regulation provides varied PPP models rather than the previous one. In the new PPP regulation, PPP models such as Design-Build-Finance (DBF) can be accommodated in addition to the classical model of the Build-Operate-Transfer (BOT). Third, the private sector’s return on investment. The government uses the principle of service availability and service performance instead using the user-pay principle only for returning private sector investments. Fourth, the PPP Regulation asserts on asset ownership that belong to the state. Private sectors may only use, operate, manage, and maintain within a certain period agreed upon.
Another new provision that is most important from the new PPP Regulation is the scope of infrastructure sectors that includes not only the economic infrastructure but also social infrastructure. It is noted that there are 19 infrastructure sectors covered instead of 8 sectors set out in the previous PPP Regulation. Health infrastructure (such as hospitals), educational facilities infrastructure (schools and universities), and penitentiary infrastructure are among new sectors covered in the PPP regulation. In other countries, in general, a model to provide such facilities does not include provision of management by private sector. A well-known model for education, health and prison facilities is the DBF model. The onus of operating and managing them is on the government.
However, there are two subjects left unaccommodated. First, a special unit of PPP under the President. In other countries such as Malaysia and Canada, the existence of a special unit is effective in coordinating the provision of infrastructure among government agencies, horizontally and vertically. Coordination is an expensive matter in this country. Second, cross-border infrastructure provision. This is important to be regulated since there will be cross-border infrastructure projects in the future due to the ASEAN Economic Community. In general, this new regulatory regime is better than the previous one. Improvement of regulation performance remains to be seen until at least the next 2 years. (MFA)
Death End for Mary Jane Veloso: Acquittal from Death Penalty
The last minute reprieve of Mary Jane Veloso is a relief for the family and her supporters. However, the drama is not yet over. The Attorney General clearly stated that Mary Jane’s execution is postponed, not pardoned. The Mary Jane Veloso execution delay is based under the pretext on the arrest of the alleged trafficker that lured Mary Jane to become drug mule.
The question would be whether Mary Jane Veloso could be pardoned from execution. The answer would be “no”, even if the Philippines court found that Ms Veloso was a victim of human trafficking. In the current law regime, legal remedies for Mary Jane have been exhausted. For death convicts, there are two legal remedies that they can use, after all normal proceedings have been done.
First is the special review (Peninjauan Kembali). The special appeal is an ultimate remedy for convicts or parties in civil disputes to have their case reviewed. In criminal cases, the law outlines three reasonable grounds for parties to petition for special appeals, namely, faulty evidentiary law applications, error in judges’ judgments, and new substantial evidence (novum). In the case of Mary Jane, even if the Philippines court found evidence that Mary Jane was victim of trafficking, which supposed to be regarded as compelling new evidence, it is useless because Ms. Veloso had already used her right for a special review.
The limitation of special reviews is based on Supreme Court Circulation Letter Number 7/2014. The circulation letter has limited the right to petition a special review to only one time. The Supreme Court Circulation Letter contradicts with the Constitutional Court Decision that has abolished the limitation. However, the Supreme Court persists in maintaining their circulation letter in the name of finality and certainty.
A second mechanism is clemency through the President. However, this is also met with a dead end. Likewise, the government has just recently amended the Law of Clemency. The new law limits the right to petition clemency to only one time. Consequently, it blocks Ms. Veloso to petition clemency for a second time due to the limitation.
In anticipating the outcome of the verdict towards Ms. Veloso’s trafficking, it is best to avoid controversy in the future for the government or Supreme Court to review its policy on limiting the right towards petitions or special reviews. Additionally, the finality and certainity argument should not be prevailed for the right of justice. (GAT)
Manahan Sitompul Replaces M. Alim as Constitutional Court Justice
On April 21st, 2015, Constitutional Court Justice Muhammad Alim had retired. M. Alim was born in Palopo 21 April 1945, graduated from the Faculty of Law, University of Hasanuddin (UNHAS) and began his career as a government employee in the Ujung Pandang Appellate Court in 1975. His master’s degree and doctorate of law were achieved at the Islamic University of Indonesia (UII) in the department of constitutional law. His career as a judge began when he was appointed as a judge in the Sinjai District Court and also became Head of Southeast Sulawesi High Court in 2008. Alim was officially inaugurated by President SBY on 26 June 2008 and extended his term on J24 une 2013 for the 2013-2018 period.
The age limit of constitutional court justice is regulated in Article 23 paragraph (1) Letter C of Law No. 8 Year 2011, which states that the constitutional court justice is honorably discharged after reaching 70 years old. To replace a constitutional court justice, Article 20 paragraph (1) of Law No. 4 Year 2014 stipulates that the selection procedures, selection, and submission of candidates are governed by each authorized institution. However, before designated by the President, the candidate must follow a fit and proper test of constitutional court justice by the Experts Panel that is established by the Judicial Commission. After that, the authorized institutions (the Supreme Court, Parliament, and/or the President) will select the constitutional court justice from names who have passed the fit and proper test.
Finally, after a week, the Constitutional Court only has 8 constitutional court justices. On 28 April 2015, President Joko Widodo inducted Manahan Malontige Pardamean Sitompul as a new constitutional court justice for the period of 2015 to 2020 to replace M. Alim. Before becoming a constitutional court justice, Manahan, who was born in Tarutung, began his career as a judge in the Kabanjahe District Court and achieved a doctorate from the University of North Sumatra (USU). Manahan has been selected by the Selection Committee of Constitutional Court Justices from the Supreme Court on December 2014. The Judicial Commission considers that Manahan, who served as the Head of the Bangka Belitung Appellate Court, has good integrity, making them nominate him as a Constitutional Court Judge. (RW)
House of Representatives
Fights Between Members of Parliament in the Compliance Context of the Parliamentary Act and Code of Ethics
On Wednesday, 8 April 2015, at the House of Representatives Nusantara I Building, a fight broke out between 2 members of the House of Representatives (Dewan Perwakilan Rakyat / DPR), Mulyadi (Democrat Party / Partai Demokrat) and Mustafa Assegaf (United Growth Party / Partai Persatuan Pembangunan) during a joint panel discussion forum held by Commission VII with the Minister of Energy and Mineral Resources. According to Mulyadi, the fight was triggered when Mulyadi warned Mustafa not to use the House’s session excessively during the Q&A session. When Mulyadi was on his way back to the meeting room from the restroom, he passed Mustafa and there was a talk between them that ended with Mustofa hitting Mulyadi. Meanwhile, Mustafa has not yet confirmed this incident validity.
According to Mulyadi’s, it all started with the indisciplinary use of address time during the meeting. Referring to Article 257 of Parliamentary Regulation No.1 of 2014 on the Code of Conduct, each member is given a chance to address or raise questions in merely 3 minutes. Meanwhile, Mustafa spent roughly 15 minutes according to Mulyadi’s account. It is true that Article 266 arranges further that the session moderator may extend and specify the course while each member tries to make his point during sessions. However, the session moderator may also warn and demand the speaker to conclude his points when he has exceeded the given time limit. In such a situation, the session moderator should optimize his role to lead assertively and thoroughly, complying with the Parliamentary Regulation to avoid disputes among session members.
In response to the incident, the Honorary House Board (Majelis Kehormatan Dewan / MKD) immediately took measures by calling upon the members of the House. In accordance Law No. 17 Year 2014 on the Parliamentary (Majelis Permusyawaratan Rakyat, Dewan Perwakilan Rakyat, dan Dewan Perwakilan Daerah / MD3), Article 122 states that the Board has authorities of investigating and verifying the a report against members who do not perform the parliamentary obligations accordingly as stated in the Law and Ethics Code. The fighting incident had violated Article 2 in the Parliamentary Regulation on the Ethics Code because the members in dispute were more concerned with personal matters than national and state affairs during the session. If the reported person is found guilty, the Board’s decision would be accompanied with sanctions such as: a) mild sanctions accompanied with verbal or written admonition; b) moderate sanctions with the membership transfer from the House working unit or being discharged from House leader position or the House working unit leader, or c) severe sanctions accompanied with temporary discharge within a 3 (three) months minimum or permanent discharge as a member of Parliament. (RW)