tag:theconversation.com,2011:/au/topics/indonesian-law-14549/articlesIndonesian law – The Conversation2024-01-08T19:17:20Ztag:theconversation.com,2011:article/2206512024-01-08T19:17:20Z2024-01-08T19:17:20ZIndonesia is one of the world’s largest democracies, but it’s weaponising defamation laws to smother dissent<figure><img src="https://images.theconversation.com/files/568147/original/file-20240108-29-ygdop8.jpg?ixlib=rb-1.1.0&rect=17%2C1052%2C2969%2C2942&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/jakarta-indonesia-november-21-2022-east-2309158677">Shutterstock</a></span></figcaption></figure><p>Two former coordinators of one of Indonesia’s most prominent human rights organisations have escaped conviction in a defamation case brought by a powerful government minister. While their astonishing acquittal is welcome, the case marked a bleak new low for freedom of expression in one of the world’s largest democracies.</p>
<p>Haris Azhar and Fatia Maulidiyanti, who had coordinated the Commission for the Disappeared and Victims of Violence (KontraS), were accused of defamation by Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Pandjaitan. </p>
<p>Luhut’s statements made it clear the case was expressly intended to create a chilling effect and smother civil society criticism of the government.</p>
<p>So what is the case about, and why is it so important?</p>
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<h2>A messy web of mining interests</h2>
<p>The case related to a 2021 <a href="https://www.youtube.com/watch?v=1xMlnuOtBAs">YouTube video</a> in which Haris and Fatia discussed a <a href="https://ylbhi.or.id/bibliografi/laporan/ekonomi-politik-penempatan-militer-di-papua/">report</a> published jointly by a group of Indonesian civil society organisations. In the video, the pair mentioned that Luhut was “implicated” or “involved” (<em>bermain</em>) in mining in Wabu Block, in the Intan Jaya district of what is now Central Papua Province.</p>
<p>The <a href="https://www.youtube.com/watch?v=Zf3YBmJ8324">details</a> are a bit complicated, but a key part of the dispute centred on this point about mining. </p>
<p>In 2016, Australian mining firm West Wits Mining <a href="https://announcements.asx.com.au/asxpdf/20161012/pdf/43bxf6v2rm9v2m.pdf">reported to</a> the Australian Stock Exchange (ASX) that its Indonesian subsidiary Madinah Quarataa’in had entered into an agreement with another company, Tobacom Del Mandiri. They wanted to develop the Derewo River Gold Project in Intan Jaya. </p>
<p>Tobacom Del Mandiri is owned by another major Indonesian firm, Toba Sejahtra. Luhut has acknowledged he <a href="https://www.cnnindonesia.com/nasional/20230608151000-12-959378/luhut-klaim-lepas-toba-group-sejak-jadi-menteri-saham-masih-pegang">holds</a> 99% of shares in Toba Sejahtra.</p>
<p>Representatives from both Indonesian companies <a href="https://www.republika.id/posts/42691/petualangan-perusahaan-luhut-di-papua">have since said</a> the partnership did not go ahead. But given his stock portfolio, the activists had a relatively firm basis for implying Luhut was “involved” in mining in Papua.</p>
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<p>Luhut objected to this.</p>
<p>He also objected to Haris and Fatia referring to him as a “villain” (<em>penjahat</em>) and “Lord Luhut”, a favourite moniker of Indonesians online. He got the nickname because President Joko “Jokowi” Widodo has entrusted him to oversee a <a href="https://bisnis.tempo.co/read/1739767/17-daftar-jabatan-luhut-dari-jokowi-terbaru-pengarah-mrpn">seemingly endless list</a> of strategic projects. </p>
<p>Haris and Fatia were charged with defamation under the Law on Electronic Information and Transactions (commonly known as the ITE law). Unlike in Australia, defamation is a criminal offence in Indonesia. They also faced secondary fake news charges and defamation charges under the Criminal Code. </p>
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<h2>Making an example of activism</h2>
<p>Under Jokowi, there has been a dramatic escalation in abuse of the Electronic Information and Transactions Law to target activists, human rights defenders, journalists, and ordinary citizens.</p>
<p>According to Indonesian digital rights organisation SAFEnet, <a href="https://safenet.or.id/id/2023/11/koalisi-serius-mendesak-penundaan-pengesahan-revisi-kedua-uu-ite/">89 people</a> were
reported under the law between January and October 2023.</p>
<p>Public anger over the arbitrary way the law has been applied led the government to publish <a href="https://nasional.kompas.com/read/2021/06/23/19085041/skb-pedoman-uu-ite-resmi-ditandatangani-ini-isinya">guidelines</a> for law enforcers on its implementation. </p>
<p>According to the guidelines, defamation charges should not be brought when assertions are based on analysis, opinion or facts. </p>
<p>Luhut reported Haris and Fatia to police just three months after these guidelines were published.</p>
<p>The trial ran from April 2023 through to January 8 2024. During the trial, Luhut complained that being called names was <a href="https://www.cnnindonesia.com/nasional/20230608121926-12-959228/luhut-ngaku-kenal-lama-dengan-haris-saya-ingin-selesaikan-baik-baik">“deeply hurtful”</a>.</p>
<p>Delivering the court’s decision, <a href="https://www.cnnindonesia.com/nasional/20240108105148-12-1046633/haris-azhar-divonis-bebas-dalam-kasus-lord-luhut">Judge Muhammad Djohan Arifin said</a> the YouTube conversation between Haris and Fatia constituted opinion and analysis of a civil society study and their use of the word “lord” was not defamatory. </p>
<p>Prosecutors have said they will <a href="https://www.thejakartapost.com/indonesia/2024/01/08/two-activists-cleared-of-defaming-luhut.html">consider appealing</a> the decision. </p>
<p>Luhut claimed he reported the activists to defend his reputation. Other statements he made during the trial left no doubt as to his real motivations. </p>
<p>Luhut said he wants the case to serve as a “<a href="https://www.kompas.id/baca/polhuk/2023/06/08/luhut-bantah-tuduhan-punya-bisnis-tambang-di-papua">lesson</a>”. </p>
<p>The prosecution concluded its sentencing demand with <a href="https://www.cnnindonesia.com/nasional/20231113191500-12-1023701/jpu-kasus-lord-luhut-kutip-politikus-pengacara-haris-azhar-nilai-lucu">a quote</a> from a minor politician, Teddy Gusnaidi, stating: </p>
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<p>If using the label ‘activist’ means you are immune from prosecution, criminals will form NGOs (non-government organisations) to avoid consequences for their crimes.</p>
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<p>Luhut also claimed that he <a href="https://www.cnnindonesia.com/nasional/20230608163900-12-959440/luhut-saya-mau-audit-semua-lsm-dapat-dana-dari-mana">wanted to conduct</a> an “audit” of all non-government organisations in Indonesia to determine where they get their funding. </p>
<p>This is disingenuous. </p>
<p>Indonesian civil society organisations already need government approval to
receive donor funds, and most openly publish their list of donors in their public annual reports. </p>
<p>The government also regularly subjects foreign donors to interrogation from everyone from police to intelligence agencies, about their planned activities.</p>
<h2>Increasingly authoritarian tactics</h2>
<p>Appealing to nationalistic sensibilities and raising questions about civil society organisations like this is a <a href="https://www.fidh.org/en/issues/business-human-rights-environment/laws-against-foreign-agents-the-multi-functional-tool-of">classic technique</a> of authoritarian governments. It undermines organisations critical of government and <a href="https://www.tandfonline.com/doi/full/10.1080/13642987.2018.1492916">redirects focus</a> from the issues at hand.</p>
<p>Legal attacks like the one against Haris and Fatia are designed to <a href="https://experts.arizona.edu/en/publications/you-can-beat-the-rap-but-you-cant-beat-the-ride-bringing-arrests-">wear civil society down</a>. Fronting up in court every week is time consuming, emotionally draining, and takes activists away from their work. </p>
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<p>Further, the use of judicial harassment to target activists, in contrast to cruder tactics such as cyberattacks or physical violence, is designed to lend an <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1540-5893.2012.00515.x">air of legitimacy</a> to government repression.</p>
<p>Luhut has made it clear that the goal of the case against Haris and Fatia is to silence dissent. He appears to be succeeding.</p>
<p>There is already evidence that abuse of the Electronic Information and Transactions Law is having a chilling effect in Indonesian society, with a 2022 survey finding <a href="https://nasional.tempo.co/read/1580168/survei-indikator-politik-indonesia-629-persen-rakyat-semakin-takut-berpendapat">62.9% of Indonesians</a> were afraid of openly expressing their opinions.</p>
<p>Indonesian pro-democracy groups have long been willing to speak out against the state, even under the most challenging conditions. Yet repeated charges and arrests will eventually result in self-censorship and behavioural change.</p>
<p>In the face of mounting pressure, the government finally passed a <a href="https://icjr.or.id/wp-content/uploads/2023/12/Compile-RUU-ITE.pdf">revised version</a> of the law on December 5 2023.</p>
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<p>Activists have complained that, like other regressive laws enacted in Indonesia over recent years, deliberations on the revision were conducted largely <a href="https://safenet.or.id/id/2023/07/revisi-uu-ite-harus-terbuka-serius-menjawab-permasalahan-dan-tidak-boleh-terburu-buru/">behind closed doors</a>. </p>
<p>The revised law does include some improvements, including that statements made in the public interest or to defend oneself cannot be prosecuted. The maximum sentence for defamation has also been decreased to two years, yet it remains longer than provisions on defamation in the <a href="https://peraturan.bpk.go.id/Details/234935/uu-no-1-tahun-2023">new Criminal Code</a>, which will come into force in 2026.</p>
<p>Activists have argued for a complete dropping of criminal charges for online defamation. Given they have proven such an effective tool for smothering dissent, there was never any chance legislators were going to simply give up this weapon. </p>
<p>Haris and Fatia may be the highest profile Indonesians charged under the Electronic Information and Transactions Law, but they will not be the last.</p><img src="https://counter.theconversation.com/content/220651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Mann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two human rights activists have been acquitted of defaming a powerful government minister. It’s the latest in a string of concerning authoritarian uses of Indonesian law.Tim Mann, Associate Director, Centre for Indonesian Law, Islam and Society, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1961212022-12-07T22:04:33Z2022-12-07T22:04:33ZIndonesia’s new criminal code isn’t just about sex outside marriage. It endangers press and religious freedom<p>Indonesia’s controversial new criminal code was passed into law on Tuesday, replacing a clunky old code dating back to at least 1918. Lawmakers have tried for decades to replace it. In fact, the last time legislators tried in 2019, it triggered the largest public protests in Indonesia since the 1998 fall of former president Soeharto.</p>
<p>This time, politicians rushed it through at short notice, despite widespread criticism and limited opportunities for public consultation. In the end, the code passed with the support of all but two small parties.</p>
<p>Many of its provisions are dangerously vague and wide in their scope – “rubber provisions”, as Indonesians say – that empower the state at the expense of citizens. </p>
<p>The provisions that have attracted the most criticism are those that impose conservative moral values about sexuality, and those that restrict rights to freedom of expression.</p>
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<h2>A probationary period for death sentences</h2>
<p>One positive change in the new code is the introduction of a probationary period for death sentences. A death row inmate who demonstrates good behaviour during this period and exhibits remorse can now have his or her sentence changed from death to a term of imprisonment. </p>
<p>This signals a welcome step away from the “no mercy” approach adopted under President Joko Widodo (known as Jokowi). If this provision had been in place in the past, it might have allowed Australian drug offenders Myuran Sukumaran and Andrew Chan to escape the firing squad. </p>
<p>However, this reform is a lonely one. Too many of the changes introduced by the new code are highly regressive, removing or restricting freedoms previously won.</p>
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<h2>Extramarital sex and other ‘morality’ provisions</h2>
<p>Two provisions have already attracted attention internationally. One punishes extramarital sex with up to a year in prison, and the other says couples who live together without being legally married also face jail. There are fears unmarried foreign couples visiting Bali, Indonesia’s holiday island, might be targeted. </p>
<p>However, these two offences are <em>delik aduan</em>, that is, complaint offences. This means they cannot apply unless a close member of the family – a husband or wife, a parent or child – report the matter to the police. That makes it unlikely the new provisions would ever be deployed against an unmarried foreign tourist couple (although it’s possible they could be used against a foreigner with an Indonesian partner if the Indonesian’s family reports them). </p>
<p>There is more concern about the impact of these provisions on Indonesians, especially young couples. They allow families to use the police and the courts to enforce their views about sexuality and choice of partner. </p>
<p>It is also feared the new law will be used to target gay and lesbian people, who cannot marry under Indonesian law. Homosexuality is not illegal in Indonesia (except in the province of Aceh) but opponents of the new code say it criminalises gay and lesbian people by stealth. </p>
<p>Gay and lesbian people are also likely to be targeted under another provision prohibiting “indecent acts”. This is only very vaguely defined and would probably catch public acts of affection between people of the same gender.</p>
<p>The new code also contains provisions that impose jail terms for the dissemination of information about contraception – even explaining how to obtain it. There are exceptions for government family planning activities, but this provision clearly limits women’s freedom to choose.</p>
<p>Other provisions impose a four-year sentence on any woman who has an abortion, and longer terms for those who perform it (although there are exceptions for rape victims and medical emergencies). </p>
<h2>Restrictions on freedom of expression</h2>
<p>The new code contains provisions that criminalise insulting public officials, including the president and members of the government. There is no defence of truth. In other words, an offence is committed if the official is insulted, even if the allegations are true. </p>
<p>The chilling effect this would have on open debate and press freedom are obvious. In fact, equivalent provisions were struck out of the previous code by the Constitutional Court as unconstitutional. This is a flagrant attempt to reinstate those provisions, empowering the government to crack down on its opponents.</p>
<p>Other provisions ban the spreading of teachings that contradict the state ideology, Pancasila. This could also be deployed against government critics.</p>
<p>Human rights activists are also concerned about press freedom implications of two other provisions. The first prohibits the broadcasting and distribution of fake news (which is undefined) resulting in disturbance or unrest in the community and imposes a sentence of up to two years.</p>
<p>The second is even more dangerous for journalists. It states any person who broadcasts or distributes news that is unverified or exaggerated or incomplete (terms that are also not defined) will also face jail.</p>
<p>Other very controversial provisions deal with blasphemy. The code introduces increased restrictions on religion and religious life that will strengthen and expand the bases on which minority religious groups can be persecuted. This will aggravate a growing problem in post-Soeharto Indonesia.</p>
<h2>Constitutional Court challenge</h2>
<p>This deeply flawed new criminal code is likely to meet with stiff opposition from lawyers and activists, including protests, even though the new code bans “unannounced demonstrations”. And it’s inevitable it will end up in the Constitutional Court, which has certainly been willing to strike out legislation that contradicts the Constitution in the past.</p>
<p>However, activists are now worried the recent dismissal of a Constitutional Court judge by the national legislature may have changed this. </p>
<p>Lawmakers claimed Justice Aswanto, who had originally been nominated by them, had acted contrary to the legislature’s interests by doing his job and striking down unconstitutional laws. Without a clear legal basis, they had him “recalled” and President Jokowi swore in a replacement. </p>
<p>Some predict this will make the remaining judges much more cautious when the code comes before them.</p>
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<h2>A long campaign</h2>
<p>Most Indonesia-watchers agree democratic regression has increased over the last decade. The new code certainly fits that pattern. But it may also be linked to the hugely important presidential and legislative elections scheduled for February 2024. </p>
<p>President Jokowi is in his second term and cannot run again, so the elections will likely result in a major recalibration of power and wealth in Indonesia that will last for five or even ten years (if the new president wins a second term). </p>
<p>Politicians are already jostling for position and some have begun campaigning. The identity politics of religion and morality have played a central role Indonesia’s bitterly fought electoral contests in recent years, and the new code reflects this. </p>
<p>It allows the politicians who backed it to claim a “law and order” success where others had failed for years, and to assert conservative morality “family values” they think will resonate with their voters. This is particularly important for nationalist politicians seeking to bolster their religious credentials. </p>
<p>And, of course, the new code also delivers the government potent new legal weapons it can deploy against its critics.</p>
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<p class="fine-print"><em><span>Tim Lindsey receives funding from the Australian Research Council and has previously received funding from the Department of Foreign Affairs.</span></em></p>This deeply flawed new criminal code is likely to meet with stiff opposition from lawyers and activists. This might include protests and even court challenges.Tim Lindsey, Malcolm Smith Professor of Asian Law and Director of the Centre for Indonesian Law, Islam and Society, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1202892019-07-18T09:07:00Z2019-07-18T09:07:00ZBaiq Nuril’s case shows sexism still remains in Indonesia’s Supreme Court, despite its equality guidelines<figure><img src="https://images.theconversation.com/files/284684/original/file-20190718-116552-17oikpl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Indonesia women attending a meeting in Jakarta, Indonesia.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/unwomen/38444351211">UN Women/Ryan Brown</a></span></figcaption></figure><p>Legal battles are tough for anyone to go through. But for women in Indonesia seeking justice against sexual harassment and sexual violence, dealing with the law is even more trying. </p>
<p>The Supreme Court recently <a href="https://www.thejakartapost.com/news/2019/07/05/justices-reject-baiq-nurils-challenge-against-supreme-courts-defamation-conviction.html">rejected</a> a petition for a case review from Baiq Nuril Maknun, a woman from West Nusa Tenggara who was convicted of defamation against her alleged sexual harasser. This is despite the Court having created a guideline to ensure gender equality and principles of non-discrimination are honoured in hearing cases involving women.</p>
<h2>Guideline to uphold gender equality</h2>
<p>The justices rejected Nuril’s challenge against the Court’s decision in September 2018. The Court found her guilty for circulating a recording of a reportedly lewd phone call between the then-principal of a high school in Lombok where she was a teacher.</p>
<p>Nuril was charged using the <a href="https://www.thejakartapost.com/news/2019/07/11/nuril-case-raises-need-for-ite-law-revision.html">controversial</a> Electronic Information and Transactions (ITE) Law after the local education agency reported her for recording the phone call. Article 27 of the law
forbids distribution or transmission of electronic information or documents containing indecent content.</p>
<p>Nuril was sentenced to six months’ imprisonment and fined Rp 500 million (about US$34,000).</p>
<p>The Supreme Court seemed to deny its own legal product, <a href="http://ditjenpp.kemenkumham.go.id/arsip/bn/2017/bn1084-2017.pdf">the guideline on legal cases involving women</a>, through its verdict on <a href="http://icjr.or.id/data/wp-content/uploads/2017/07/Amicus-Curiae-Sahabat-Pengadilan-Baiq-Nuril.pdf">Nuril’s case</a>.</p>
<p>The Supreme Court <a href="https://www.hukumonline.com/berita/baca/lt598af94b94acd/penting-urgensi-terbitnya-perma-pedoman-mengadili-perkara-perempuan/">issued the guideline in August 2017</a> after men responsible in <a href="https://mediaindonesia.com/read/detail/71165-rata-rata-vonis-kejahatan-seksual-cuma-51-bulan">several sexual crimes cases were given lenient verdicts</a>. They compiled the guideline by asking input from academics, non-governmental organisations, and the National Commission on the Elimination of Violence against Women through a series of meetings, discussions, and public consultations.</p>
<p>Various organisations welcomed the guidelines as a <a href="http://mappifhui.org/2018/07/24/cerita-perubahan-perma-no-3-tahun-2017-terobosan-hukum-bagi-perempuan-dalam-sistem-peradilan/">legal breakthrough for women in the justice system</a>.</p>
<p>The guideline aims to, first, help justices understand and apply gender equality and the principles of non-discrimination. Second, to help judges identify situations where there is unequal treatment that may lead to discrimination against women. And third, to ensure the justice system guarantees women’s rights to equal access in courts and trial proceedings.</p>
<p>As the highest court in the Indonesian judiciary, the Supreme Court has the power to correct measures taken by other law enforcers that are discriminatory towards women. Although there has been no research on the impact of this guideline, its existence remains important.</p>
<h2>Failure in Nuril’s case</h2>
<p>In our analysis of Nuril’s case, law enforcers – from the police to judges – have failed to consider Nuril’s effort in obtaining evidence of sexual abuse.</p>
<p>They failed to take into account the unequal power relations between Nuril, as a temporary teacher, and her superior who served as the school’s principal. </p>
<p>In its guideline, the Supreme Court defines power relations as a hierarchical relationship that is unequal and dependent on social status, culture, knowledge, education, or economics, which gives power to one party over another and harms those in a lower position.</p>
<p>When examining cases involving women, the guideline advises justices to consider the unequal social status between the litigants. Judges are also advised to consider gender equality and gender stereotypes in legislation and unwritten law. </p>
<p>They must explore values and make interpretations so they can guarantee gender equality, equal protection and non-discrimination.</p>
<p>But Indonesia’s Supreme Court ignored the guideline and considered that they need to punish Nuril to warn Indonesians against recording private conversations. The justices considered her actions to be contrary to religious, social, and cultural values. They also considered Nuril’s actions to be detrimental to the school’s principal and his family.</p>
<p>However, the assembly did not consider her employer’s actions also contradicted the values and were detrimental to Nuril and her family.</p>
<h2>Bad precedent</h2>
<p>Women face discrimination in the courtroom and go through unfair trials. There have been verdicts that show justices aren’t aware of the guideline. In some cases of rape, for example, defendants or their lawyers bring up unfavourable information about the woman to undermine her testimony.</p>
<p>In <a href="http://mappifhui.org/wp-content/uploads/2019/06/Executive-Summary-KS.pdf">a rape trial in Lubuk Pakam, North Sumatra</a>, the judge considered the alleged victim as a promiscuous woman because she was not a virgin and had a drinking habit. The judge then acquitted the defendant of rape.</p>
<p>The Muara Bulian district court in Jambi also sentenced a 15-year-old girl, who had an abortion after being <a href="https://www.voaindonesia.com/a/vonis-korban-perkosaan-yang-gugurkan-kandungan-di-jambi-dikritik-tajam/4493385.html">raped by her older brother</a>, to six months in jail. </p>
<p>In <a href="https://kompas.id/baca/polhuk/2018/08/13/banyak-hakim-yang-tak-pahami-peraturan-ma/">that matter</a>, the judges should have considered the unequal power relations between the siblings and the psychological impact suffered by the woman. </p>
<p>Verdicts against women could discourage women from <a href="https://www.vice.com/en_us/article/vbnbgb/why-dont-people-report-sexual-assault-trump-kavanaugh">reporting</a> experiences of sexual violence. The Supreme Court’s verdict in Nuril’s case creates a bad precedent for women wanting to expose sexual abuse. </p>
<p><em>Ninik Rahayu, a member of Indonesian Ombudsman and a part time lecturer in training and education centres at the Attorney General’s Office, Supreme Court, the Police Staff College and The Law and Human Rights Ministry, contributed to the article.</em></p><img src="https://counter.theconversation.com/content/120289/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Choky R. Ramadhan tidak bekerja, menjadi konsultan, memiliki saham, atau menerima dana dari perusahaan atau organisasi mana pun yang akan mengambil untung dari artikel ini, dan telah mengungkapkan bahwa ia tidak memiliki afiliasi selain yang telah disebut di atas.</span></em></p>The Supreme Court created a guidelines that aimed for justices to treat women fairly. But it denied its own equality push when it came to the case of Baiq Nuril Maknun.Choky R. Ramadhan, Dosen Hukum Acara Pidana/ Ketua MaPPI FHUI, Universitas IndonesiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/792392017-07-04T23:01:22Z2017-07-04T23:01:22ZIs Indonesia’s ‘pious democracy’ safe from Islamic extremism?<figure><img src="https://images.theconversation.com/files/176299/original/file-20170629-21076-360qcq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of Jakarta's former Governor Basuki 'Ahok' Tjahaja Purnama.</span> <span class="attribution"><span class="source">AP Photo/Dita Alangkara</span></span></figcaption></figure><p>The governor of Jakarta, Indonesia – a Christian – was convicted for <a href="http://www.hukumonline.com/klinik/detail/cl4464/penghinaan-terhadap-agama">blasphemy against religion</a> earlier this year and <a href="https://www.theguardian.com/world/2017/may/09/jakarta-governor-ahok-found-guilty-of-blasphemy-jailed-for-two-years">sentenced to two years in prison</a>.</p>
<p>The conviction has <a href="https://www.nytimes.com/2017/05/09/world/asia/indonesia-governor-ahok-basuki-tjahaja-purnama-blasphemy-islam.html?_r=0">shocked observers</a> around the globe. Since the country’s democratic transition in 1998, American politicians on both sides of the aisle, from Democrat <a href="http://www.reuters.com/article/us-indonesia-clinton-idUSTRE51H15A20090218">Hillary Clinton</a> to Trump’s Vice President <a href="http://www.csmonitor.com/World/Asia-Pacific/2017/0420/Pence-tours-Indonesian-mosque-praises-moderate-Islam-and-calls-for-fairer-trade">Mike Pence</a>, have praised Indonesia as a model Muslim-majority democracy.</p>
<p>Governor Basuki “Ahok” Tjahaja Purnama was convicted based on comments he made on the campaign trail in September 2016. He had stated that Islamists who cited a <a href="https://quran.com/5/51-61">Quran verse</a> to support their view that <a href="http://www.mizanproject.org/do-not-take-unbelievers-as-your-leaders/">Christians should not hold high office</a> were being <a href="http://www.reuters.com/article/us-indonesia-politics-idUSKBN1842GE">deceitful</a>.</p>
<p>An edited transcript of his speech, which made it appear as though Ahok was criticizing the Quran itself, was <a href="https://www.youtube.com/watch?v=TSF2MJLuzJc">posted online</a>. The video went viral. Islamist vigilante groups seized the moment to rally against the incumbent Christian governor and in support of Ahok’s opponents in the April 19 election. </p>
<p>It was a winning strategy. </p>
<p>They held the <a href="http://indonesiaatmelbourne.unimelb.edu.au/bigger-than-ahok-explaining-jakartas-2-december-mass-rally/">largest rally in Indonesian history</a> “in defense of Islam.” Their movement propelled Ahok’s <a href="https://www.theguardian.com/world/2017/apr/15/jakarta-election-challenger-anies-accused-of-courting-islamic-vote-amid-religious-divide">opponent</a> into the governor’s mansion and Ahok into prison. Some observers saw Ahok’s 16-point defeat as a victory for Islamists, and a sign of the influence of an intolerant strain of Islam.</p>
<p>Since Indonesia’s democratization in 1998, it has been widely seen as a model of religious tolerance and pluralism in the Muslim world. Is Indonesia’s tradition of religious tolerance a thing of the past? Will Indonesia <a href="https://muse.jhu.edu/article/523720">backslide into authoritarianism</a> like its neighbors Thailand and the Philippines, or be taken over by Islamists like Turkey, Iran and Saudi Arabia? Or, might militant groups like the Islamic State (IS), which has already gained a <a href="https://www.nytimes.com/2017/06/04/opinion/isis-philippines-rodrigo-duterte.html">foothold in the Philippines</a>, make <a href="http://www.ucanews.com/news/islamic-state-makes-inroads-into-malaysia-indonesia/79371">further inroads into Indonesia</a>?</p>
<p>Drawing on more than 24 months of field work in Indonesia, I tackled these questions in my <a href="http://www.cambridge.org/us/academic/subjects/politics-international-relations/south-east-asian-government-politics-and-policy/islam-and-democracy-indonesia-tolerance-without-liberalism?format=PB#reTtpRXOt3xdSx2U.97">book</a> on Islam and tolerance in this massive Muslim-majority democracy.</p>
<h2>Neither secular nor theocratic</h2>
<p>Indonesia is the world’s largest Muslim-majority country, a democracy and the largest country in Southeast Asia. It faces many of the same <a href="https://www.oecd.org/eco/growth/Going-for-Growth-Indonesia-2017.pdf">problems</a> as other developing countries, including weak infrastructure, low-quality education and high levels of corruption. Composed of over 17,000 islands, Indonesia is also one of the world’s most diverse countries, which means that protecting minority groups is an <a href="http://www.tandfonline.com/doi/abs/10.1080/00927678.2012.704832?src=recsys&journalCode=vasa20#.WVQ9-juamoE.twitter">especially important concern</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=300&fit=crop&dpr=1 600w, https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=300&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=300&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=377&fit=crop&dpr=1 754w, https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=377&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/176135/original/file-20170628-31267-zptkeh.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=377&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A map of Indonesia.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:LocationIndonesia.svg">Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Now, to be clear: in my view, Indonesia’s law prohibiting blasphemy or the defamation of religion is oppressive. It suppresses free speech and individual rights. It invites abuse and enforcement by <a href="http://www.newmandala.org/justice-by-numbers/">vigilante groups</a>. But that does not mean Indonesian democracy is destined to become a <a href="https://www.britannica.com/topic/theocracy">theocracy</a> in which government policy is divinely inspired.</p>
<p>It is one of a body of laws that, as my research revealed, have been on the books for decades. Contrary to what some observers have suggested, these laws are not a result of <a href="https://www.bostonglobe.com/opinion/2017/06/10/saudi-arabia-destabilizing-world/ivMeb7TWGk1fQaVjZWWKGP/amp.html">Islamic extremism from Saudi Arabia</a> or IS. Instead, they <a href="http://khazanah.republika.co.id/berita/dunia-islam/islam-nusantara/17/05/19/oq76h3377-nu-dan-muhammadiyah-sepakat-indonesia-negara-kebangsaan">reflect the views of</a> <a href="https://www.nytimes.com/2017/05/01/world/asia/indonesia-islam.html">Islamic civil society organizations</a>. These organizations run thousands of schools, health clinics and universities, and provide the backbone for the civil society that <a href="https://books.google.com/books?id=gKZP8_Tp27UC&lpg=PP1&ots=5odIsFfKXK&dq=info%3AgyAGockWm8AJ%3Ascholar.google.com&lr&pg=PP1#v=onepage&q&f=false">helps make democracy work</a>.</p>
<p>For example, the Indonesian government makes religious education mandatory. Students can choose from Islam, Hinduism, Buddhism, Confucianism, Roman Catholicism or Protestant Christianity. All six religions are <a href="http://journals.sagepub.com/doi/abs/10.1177/0037768605058151">recognized and celebrated by the state</a>. The Indonesian government obliges citizens to declare adherence to one of those recognized religions, restricts interfaith marriage and limits activities that it sees as interfering with communal rights, <a href="https://jeremymenchik.files.wordpress.com/2016/11/menchik_indonesia_democracy_sacralizingnov2016_final.pdf">such as interfaith proselytizing (attempting to convert people) and blasphemy</a>. </p>
<p>Americans have a hard time understanding this nonsecular form of democracy. </p>
<p>Based on our own Constitution, we tend to assume that democracy requires a secular state in order to protect religious minorities, who would suffocate under religious rule. But there are many examples of democracies that, like Indonesia, are neither fully secular nor theocratic.</p>
<p>Take Greece, a consolidated democracy. The <a href="http://www.tandfonline.com/doi/abs/10.1080/01402380412331300227">Eastern Orthodox Church of Christ plays a prominent</a> role in Greek state ceremonies, the education system and even the conferring of building permits. In fact, the salaries of clergy are <a href="https://www.washingtonpost.com/world/europe/in-greece-churchs-tangled-ties-with-government-raise-questions/2012/05/30/gJQAFySG1U_story.html?utm_term=.c46c8f019683">paid by the state</a>. According to the Greek <a href="http://www.hri.org/docs/syntagma/artcl25.html#A3">Constitution</a>, alterations or translations of the Bible from Greek are prohibited without permission from the church. And, although infrequent, blasphemy cases can be brought before <a href="http://www.economist.com/blogs/erasmus/2015/01/blasphemy-law-and-greece">civil and criminal courts</a>. </p>
<p>In India, another democracy, all religions are defined as equal, and major religious communities enjoy state patronage. Religious holidays from several religions are observed as <a href="https://india.gov.in/calendar">public holidays</a>. Religious affiliation is <a href="https://www.pri.org/stories/2012-12-10/why-its-not-easy-be-atheist-india">noted on birth certificates</a>. The state subsidizes <a href="http://www.mea.gov.in/lok-sabha.htm?dtl/26666/QUESTION+NO467+SUBSIDY+TO+HINDU+AND+SIKH+PILGRIMS">Hindu, Sikh</a> and <a href="http://www.hindustantimes.com/india-news/haj-subsidy-under-examination-by-government-once-again/story-f5K0jfqjv2czBYdnpT5FEP.html">Muslim</a> pilgrimages. And <a href="https://berkleycenter.georgetown.edu/essays/national-laws-on-blasphemy-india">blasphemy</a> is prohibited by the penal code. </p>
<p>Greece, India and Indonesia are examples of democracies that are not quite secular. We might call them “pious democracies.” They promote religious values while trying to synthesize liberal individual rights and group rights. These states are not unusual. Globally, majorities in more than 20 countries say that belief in God is necessary for a person <a href="http://www.pewglobal.org/2014/03/13/worldwide-many-see-belief-in-god-as-essential-to-morality/">to have good values</a>. These views shape public policies. </p>
<h2>Moderates and militants</h2>
<p>In Indonesia, the emergence of militant Islamists like <a href="https://www.ft.com/content/1358b1f6-39e7-11e7-821a-6027b8a20f23">Hizbut Tahrir Indonesia</a> and the Islamic State has made it difficult for moderate Muslims to implement their vision for a pious democracy. The high profile of militants makes it difficult for the American public to understand the difference between militants and moderate Muslims. They are similar in that neither militants nor moderates want a secular state. But they are different in that moderates do not want to live in an Islamic state. </p>
<p>Data from a global network of social scientists, the <a href="http://www.worldvaluessurvey.org/WVSOnline.jsp">World Values Survey</a>, show that in 2006 the overwhelming majority of Indonesians <a href="https://twitter.com/jeremymenchik/status/873361313409400832">did not want a government</a> in which religious leaders tell people how to vote. More recent data suggest not much has changed. A poll <a href="https://en.tempo.co/read/news/2017/06/05/055881503/Most-Indonesians-Oppose-ISIS-HTI-Caliphate-Survey">conducted in May 2017</a> shows most Indonesians oppose replacement of the constitution with a caliphate. More than 80 percent oppose IS, and less than 3 percent support the goals of IS, according to recent data from <a href="https://en.tempo.co/read/news/2017/06/05/055881503/Most-Indonesians-Oppose-ISIS-HTI-Caliphate-Survey">a research and consulting firm based in Jakarta</a>. In other words, most Indonesians, a majority of whom are Muslim, do not want to live in a caliphate.</p>
<p>But they do want mandatory religious education, <a href="http://www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politics-society-morality/">leaders who believe in God</a> and a society in which religion is valued by the state. As I discovered through hundreds of interviews, most Indonesian Muslims seek a state and society that promotes religious values and the rights of <a href="https://www.cambridge.org/core/books/islam-and-democracy-in-indonesia/communal-tolerance/1DF20EBD767FE2708EC815FB32E6B697">religious communities alongside individual rights</a> and religious pluralism. </p>
<p>As my interviewees explained, their goal is a society in which individuals, organizations and the state are partly <a href="https://jhupbooks.press.jhu.edu/content/genealogies-religion">responsible for one another’s moral condition</a>. </p>
<p>Putting that vision into practice is exceedingly difficult at a time when secularism is often equated with tolerance, and religion is synonymous with extremists like IS. Whether in <a href="https://www.hrw.org/world-report/2016/country-chapters/india">India</a>, <a href="https://www.pri.org/stories/2012-08-07/greece-turns-back-religious-minorities">Greece</a> or Indonesia, group rights are challenging to enforce in a just manner – just look at Native American control over their land in the U.S. </p>
<p>But, as India and Greece demonstrate, it is possible. And in that respect, Indonesian Muslims’ war against blasphemy and Ahok’s prosecution is simply another moment in a long struggle to develop a pious democracy while avoiding the templates of secularism or theocracy.</p><img src="https://counter.theconversation.com/content/79239/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeremy Menchik does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An expert on Islam and democracy examines the threat to the world’s largest Muslim majority country.Jeremy Menchik, Assistant Professor of International Relations, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/671162016-11-02T03:04:54Z2016-11-02T03:04:54ZIs forced chemical castration the answer to protecting children from sexual abuse in Indonesia?<p>A Balinese Court last week sentenced 70-year-old Australian Robert Ellis to 15 years in prison for sexually abusing 11 girls in his home in Denpasar, Bali. </p>
<p>He escaped newly introduced punishments such as chemical castration, electronic chip implants and the death penalty for sexual abuse against minors, recently adopted by Indonesia under <a href="http://www.hukumonline.com/pusatdata/detail/lt5746a3e8d6d80/node/534/peraturan-pemerintah-pengganti-undang-undang-nomor-1-tahun-2016">a new law amending the 2002 child protection law</a>. The punishments can be applied once the government passes regulations to implement the new law. </p>
<p>The introduction of these harsh measures is controversial. <a href="https://www.amnesty.org/en/latest/news/2016/10/indonesia-halt-chemical-castration/">Rights activists</a> and <a href="http://jakartaglobe.beritasatu.com/featured-2/doctors-refuse-perform-chemical-castration-sex-offenders/">doctors</a> in particular object to forced chemical castration. </p>
<p>The Indonesian government argues that forced chemical castration for perpetrators of sexual violence against children would not only create a powerful deterrent, but also help paedophiles regulate their sexual urges. </p>
<p>Indonesia’s social affairs minister Khofifah Indarparawansa said they adopted the punishment based on other countries’ experiences. In <a href="http://www.ibtimes.co.uk/chemical-castration-used-treat-record-number-uk-sex-offenders-1491015">Nottingham, England</a>, <a href="http://www.rmol.co/read/2016/05/17/246900/Khofifah-Indar-Parawansa:-Saya-Pakai-Data,-Banyak-Negara-Yang-Memberlakukan-Tambahan-Hukuman-Kebiri-">“people line up to get castrated,”</a> she was quoted saying.</p>
<p>However, Indonesia’s implementation of chemical castration for sex offenders differs from the UK and other countries. Additionally, the adoption of these harsh punishments is not supported by proper data and analysis of the problem of child sexual abuse in Indonesia. </p>
<h2>Forced VS voluntary intervention</h2>
<p>Indonesia’s adoption of chemical castration is harsher than the implementation in the countries it learned from, such as the UK.</p>
<p>In the UK, chemical castration is a voluntary option for offenders. In Indonesia it is forced upon offenders. Under the new law, judges can mandate that chemical castration to be administered to the offender in addition to his prison time. </p>
<p>Indeed, most European countries, except for Poland, implement chemical castration only as a voluntary intervention. Finland, Czech Republic and some states in the US offer chemical castration as an alternative to longer prison time. </p>
<p>In Denmark, Germany and Texas in the United States, it must only be given with informed consent from the wrongdoer. This means medical practitioners must give complete information about the procedure as well as the risk and benefits of the treatment to the wrongdoer, who have the right to refuse treatment. </p>
<p>In Sweden, the wrongdoer must be over 23 years old, and in Germany they must be over 25 years old. In Sweden and also in Finland it’s administered in confidence, so this information could not be publicly disclosed. </p>
<p>Most countries use this punishment only for repeat offenders. In Indonesia, it can be given to first time offenders. Any male above the age of 18 sentenced to chemical castration would have the treatment forced upon him, even if it’s his first wrongful act. </p>
<h2>Blind move</h2>
<p>Indonesia <a href="http://www.nytimes.com/2016/05/26/world/asia/indonesia-chemical-castration.html?_r=0">legalised forced chemical castration</a> for perpetrators of sexual violence against minors without a clear understanding of the extent of the problem of child sexual abuse in the country. </p>
<p>The move to introduce chemical castration came <a href="http://www.nytimes.com/2016/05/26/world/asia/indonesia-chemical-castration.html?_r=0">as a response to a spate of horrifying news</a> of rapes and murders of women and girls last year. </p>
<p>But while the media document cases of sexual abuse against children, the government doesn’t have a clear understanding on how bad the problem is. That’s one of the problems Indonesia faces in developing a good policy to address the problem of sexual abuse of children in Indonesia. According to UNICEF, Indonesia <a href="http://www.unicef.org/eapro/Child_Protection_in_the_Digital_Age.pdf">does not have data on a national situational analysis on child sexual abuse</a>. The country also does not have data on paedophile cases. Information on cases of violence against children has never been systematically collected and analysed using sound research methods. </p>
<p>A <a href="http://www.unicef.org/evaldatabase/files/Indonesia_2015-002_Child_Protection_System_Building_Approach.pdf">study by UNICEF</a> quoted data from The National Commission on Child Protection, claiming that between 2010 and 2014, more than 10 million children had been victims of sexual violence in Indonesia. UNICEF however doubts the validity of how these figure were determined. </p>
<p>What we do know is that child victims of sexual abuse lack proper medical care, psycho-social support, legal advice and child-sensitive investigative services.</p>
<p>This means that the introduction of chemical castration, the tagging of released offenders, and the death penalty as punishments seem to not be based on analysis of situation and impacts, but on a reaction to horrifying news of child sexual abuse. </p>
<h2>New problems</h2>
<p>Chemical castration as punishment ignites a debate on the balance between human rights of perpetrators of sexual violence and the protection of women and children against sexual violence. </p>
<p>Rights activist argue that forced chemical castration is a degrading punishment and violates the human rights of the offender.</p>
<p>Others argue that castration, when used as alternative punishment, is just, as long as the perpetrator’s right to privacy is ensured and there is no torture or ill treatment of him or negative impact on his health. There must also be informed consent, so that it does not violate human rights. </p>
<p>In any case, any policy should be made with an clear understanding of the problem, which in Indonesia’s case is lacking. </p>
<p>Victims of sexual abuse in Indonesia often experience re-victimisation through “shaming and naming”. In a lot of child sexual abuse cases, the media and public share detailed information, including victims’ names and faces, before cases are properly investigated. </p>
<p>To create a safe environment for children free from sexual violence, the government must create programs that effectively prevent these crimes and protect victims. To do so, it must have a clear and comprehensive understanding of the problems of child sexual abuse and exploitation in a national level. </p>
<p>Introducing harsher punishments without a clear basis will only lead to new problems such as human rights violations and re-victimising children without any progressive solution.</p><img src="https://counter.theconversation.com/content/67116/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Indonesia’s decision to allow forced chemical castration as punishment for those who sexually abuse children is controversial.Asmin Fransiska, Lecturer in Human Rights, Universitas Katolik Indonesia Atma Jaya Nugroho Adipradana, Lecturer in Criminal Law, Universitas Katolik Indonesia Atma Jaya Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/678362016-10-28T01:15:17Z2016-10-28T01:15:17ZJessica Wongso found guilty in cyanide coffee case, but she may not yet have had a fair trial<figure><img src="https://images.theconversation.com/files/143605/original/image-20161027-11268-kg9k3w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jessica Wongso during her sentence hearing at the Central Jakarta District Court in Jakarta.</span> <span class="attribution"><span class="source">AAp/Oscar Siagian</span></span></figcaption></figure><p>On Thursday in Central Jakarta District Court, a panel of three judges decided one of the most high-profile and controversial criminal cases in Indonesian legal history. </p>
<p>The case highlights issues with Indonesia’s <a href="https://theconversation.com/bali-nine-hypocrisy-politics-and-courts-play-out-in-death-row-lottery-36205">widely</a> <a href="https://theconversation.com/jokowi-should-halt-executions-under-indonesias-corrupt-judicial-system-37463">criticised</a> judicial system.</p>
<p>After a four-month trial, broadcast live on two national television stations, Jessica Kumala Wongso, an Australian permanent resident, <a href="http://www.smh.com.au/world/cyanide-coffee-murder-australia-resident-jessica-wongso-jailed-for-20-years-20161027-gsc15t.html">was found guilty of premeditated murder</a>. The judges sentenced her to 20 years’ imprisonment for poisoning her friend Mirna Salihin at an upmarket cafe in Jakarta in January this year.</p>
<p>They accepted the prosecution claim that, after arranging to meet Salihin and a mutual friend, Hani, at the cafe, Wongso arrived early. She ordered drinks, and before her friends arrived, put a dose of cyanide into Salihin’s Vietnamese iced coffee. The prosecution said she placed three paper shopping bags on the table she was sitting at to hide what she was doing from CCTV cameras. </p>
<p>Salihin drank the coffee and then collapsed, dying before she reached hospital. For the judges, Wongso’s motives were jealousy and revenge. Wongso was jealous of Salihin’s happy marriage, and wanted revenge after Salihin had told her to break up with her Australian boyfriend, and because she had not been invited to Salihin’s wedding.</p>
<p>Wongso’s case was highly controversial from the start. Indonesia asked the Australian Federal Police to help them investigate Wongso for charges of premeditated murder, even though Indonesia’s Criminal Code allows judges to impose the death penalty for that crime. </p>
<p>Indonesian Law and Human Rights Minister Yasonna Laoly, reportedly gave a <a href="http://www.smh.com.au/world/coffee-murder-indonesian-minister-signed-guarantee-jessica-wongso-wouldnt-be-executed-20160602-gp9vff.html">guarantee</a> she would not face the death penalty. However, the minister <a href="http://www.smh.com.au/world/coffee-murder-indonesian-minister-signed-guarantee-jessica-wongso-wouldnt-be-executed-20160602-gp9vff.html">cannot give such a guarantee</a>, because prosecutors decide what penalty to pursue, and the courts can impose any penalty they like.</p>
<p>Adding to the controversy were allegations that senior Indonesian police refused to allow her lawyer to accompany her during questioning, <a href="http://www.hukumonline.com/berita/baca/lt56a32b5298883/mengusir-pengacara-saat-dampingi-klien--polisi-langgar-aturan-ini">thereby breaching police procedures and perhaps even the Code of Criminal Procedure</a>. <a href="http://www.hukumonline.com/berita/baca/lt56ab8befc8e4f/diberitakan-mengusir-advokat--ini-jawaban-kombes-krishna-murti">Police deny that they forced her lawyer from the room</a>, but admitted that they “asked” the lawyer to leave the room to prevent him influencing her statement. </p>
<p>In court, and in the media, Wongso was portrayed as crazed, malicious and capable of murder. However, the evidence against Wongso has always been circumstantial and threadbare. Even prosecutors appeared reluctant to proceed to trial in her case, asking the police for more evidence on four occasions.</p>
<p>Because no direct evidence of her guilt exists, the trial consisted largely of expert witnesses, for both the prosecution and defence, opining about Wongso’s mental state and post-mortem tests on Salihin’s body. There was limited CCTV footage available. Almost none of the prosecution-led evidence was convincing, at least when compared with the defence evidence.</p>
<p>The prosecution called several psychologists as expert witnesses to testify about Wongso’s mental state in general, and after Salihin collapsed. However, none of them examined Wongso themselves, and their testimony appeared to be crude and lay rather than expert. For example, one described Wongso’s reaction to Salihin’s collapse as <a href="http://www.hukumonline.com/berita/baca/lt57b165b3856ad/psikolog-nilai-janggalnya-ketenangan-jessica-saat-mirna-kejang">“strange”</a> because the CCTV footage did not show that Wongso tried to help Salihin.</p>
<p>Another testified that it was unusual for someone to place their bags on a table when the seat beside them was vacant. Yet another raised questions about Wongso’s mental state, based on a police statement made by her former boss in Australia, who said she heard Wongso say: </p>
<p>“If I wanted to kill anyone, I know how to do it. I could use a gun. And I know the right dosage.”</p>
<p>Wongso’s former boss did not appear at trial to confirm this statement.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143610/original/image-20161028-11275-1nkgmo8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Supporters hold Justice for Mirna pins outside the sentencing hearing for Jessica Kumala Wongso at Central Jakarta District Court in Jakarta.</span>
<span class="attribution"><span class="source">AAP/Oscar Siagian</span></span>
</figcaption>
</figure>
<p>Prosecutors alleged that Wongso knew that the café had CCTV cameras and where they were located, so that, as mentioned, she used shopping bags to block the view of her putting the cyanide in Salihin’s coffee. One expert testified that the CCTV footage showed Jessica making “suspicious movements” when she opened her handbag, and that perhaps she had <a href="http://www.hukumonline.com/berita/baca/lt5761c89ed3579/jaksa-beberkan-motif-jessica-lakukan-pembunuhan-berencana">put something on the table</a>.</p>
<p>However, none of the footage played during the trial showed that she took anything from her handbag, much less that she pulled out cyanide and then stirred it into Salihin’s drink. In fact, Wongso’s lawyer demonstrated that she had sent a text message on her phone at the time her hands were obscured by the bags. This could account for the so-called “suspicious” movements.</p>
<p>Worse, the prosecution did not convincingly prove that Salihin died from ingesting poison, let alone cyanide. The coffee that Salihin drank was neither tested nor produced at trial. It was likely discarded at the cafe soon after Salihin collapsed. One expert from the National Police Hospital testified that Salihin’s intestines were corroded and her mouth was blackened, which was consistent with cyanide poisoning. The Court appears to have accepted this testimony over the mountain of expert testimony called by the defence, <a href="http://www.hukumonline.com/berita/baca/lt57c6e450158f4/ahli--mirna-meninggal-belum-tentu-karena-sianida">serious doubts about whether the cause of Salihin’s death was cyanide</a>.</p>
<p>Critically, <a href="http://www.smh.com.au/world/alleged-cyanide-coffee-murder-jessica-wongso-faces-20-years-jail-20161004-grv410.html">no autopsy was conducted</a>, and toxicology tests conducted 70 minutes after her death revealed no cyanide in her gastric fluid, bile, liver and urine. Only small traces of cyanide were found in her stomach fluid several days after her death, but, as University of Indonesia forensic pathologist Jaya Surya Atmaja testified, this was probably from embalming chemicals. </p>
<p>The possibility remains, then, that Salihin died from <a href="http://www.hukumonline.com/berita/baca/lt57d08aa5df259/ahli-forensik-sebut-efek-samping-pengawetan-mayat">natural causes</a> such as a heart attack. An Australian pathologist supported these conclusions, testifying that he would expect much higher levels of cyanide in the stomach of a person fatally poisoned, there would also be cyanide in the bowels and liver. He explained that the onset of cyanide poisoning typically occurred up to <a href="http://www.smh.com.au/world/australian-expert-questions-cyanide-poisoning-in-alleged-coffee-murder-in-indonesia-20160906-gra5cm.html">30 minutes after ingestion, not two minutes</a> as the prosecution claimed. <a href="http://www.hukumonline.com/berita/baca/lt57d08aa5df259/ahli-forensik-sebut-efek-samping-pengawetan-mayat">Other typical indications of cyanide</a> mentioned by defence experts, including red skin, the smell of cyanide, and poison in the stomach, were not present.</p>
<p>Other important issues were ignored by the judges. After Salihin apparently complained about the taste of the coffee, both Hani and the cafe owner tasted it, but suffered no ill effects. Does this add support to the defence argument that Salihin might not have been poisoned after all? </p>
<p>The claim that Wongso “arrived early” at the cafe as part of a plan to put the cyanide in the coffee also does not withstand scrutiny: text messages produced by the defence suggest that Wongso arrived at the time the three women had agreed, but Salihin and Hani arrived late. If they had arrived on time, as planned, Jessica would not have had an opportunity to lace the drink.</p>
<p>With not much evidence to go on, the prosecution, and even the judges, asked numerous seemingly random questions to witnesses and the defendant during the trial that had no clear progression or direction, apparently to “trip up” the defendant.</p>
<p>The judges wrote in their judgement that Wongso’s crying during the trial had been a “stage show” because it had not “come from deep within her heart”; she had sobbed, but could produce no tears and did not need to hold a tissue to wipe tears from her face, <a href="http://m.detik.com/news/berita/d-3330513/jessica-menanti-nasib-di-ujung-palu-hakim#key1">they observed</a>.</p>
<p>Immediately after the judges finished reading their decision, Wongso’s lawyer, Otto Hasibuan, declared that she would appeal, calling the decision a “death knell” for justice. The judges, he suggested, had ganged up again the defence, acting as though it were the prosecution and ignoring the defence’s evidence.</p>
<p>Whether she poisoned her friend or not, Jessica Wongso is entitled to a fair trial under Indonesian law. She does not seem to have had one yet. </p>
<p><em>CORRECTION: This article was corrected on October 28 to replace the line “She was deported” with “Indonesia asked the Australian Federal Police to help them investigate Wongso…” and the line “the Australian police relied…” with “Indonesian Law and Human Rights Minister Yasonna Laoly, reportedly gave a guarantee that she would not face the death penalty.” The Conversation apologises for the error.</em></p><img src="https://counter.theconversation.com/content/67836/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Butt receives funding from the Australian Research Council </span></em></p>A young Australian has been sentenced to 20 years in prison for murdering her friend, but the evidence against her was circumstantial and threadbare.Simon Butt, Professor of Indonesian Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/626902016-07-19T20:09:05Z2016-07-19T20:09:05ZBusiness Briefing: The hurdles, pitfalls and payoffs of investing in Indonesia<figure><img src="https://images.theconversation.com/files/131044/original/image-20160719-13859-1345ght.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A typical street business in Jakarta, Indonesia.</span> <span class="attribution"><span class="source">Michelle Robinson/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>As Indonesia’s middle class grows, so too does demand for services and products, such as education, health and processed food. Australia is well placed to supply these, however businesses must first tackle layers of regulation and bureaucracy. </p>
<p>There are signs Australia and Indonesia may be moving towards a free trade agreement but this won’t address the problems not related to tariffs like specifications on labelling, marketing and competing with local firms. </p>
<p>What many Australian investors and businesses don’t understand is that there isn’t much rule of law in Indonesia, says Matthew Busch, a PhD candidate at the University of Melbourne who has been studying the country’s political economy. So if there’s a problem, the courts can’t be relied on to fix it.</p>
<p>However there are ways to avoid the pitfalls of doing business in Indonesia, as Busch explains.</p><img src="https://counter.theconversation.com/content/62690/count.gif" alt="The Conversation" width="1" height="1" />
When it comes to doing business in Indonesia, some Australian businesses have a lot to learn.Jenni Henderson, Section Editor: Business + EconomyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/409502015-04-29T02:54:34Z2015-04-29T02:54:34ZMulya Lubis: defender of Chan and Sukumaran and human rights in Indonesia<p>There’s no pussyfootying around this. No inscrutable Javanese way to make this statement. The <a href="https://theconversation.com/bali-nine-duo-executed-the-view-from-indonesia-38392">execution</a> of two young Australian men, after 10 years of rehabilitation in an Indonesian prison, is a body blow to Australia-Indonesia relations.</p>
<p>There is nothing defensible about the state-sponsored killing in the name of national legal sovereignty. Nor are Indonesia’s national interests in the 21st century best protected by offending the rest of the world. The disregard that this Indonesian government has shown to Australian sensitivities by <a href="http://www.abc.net.au/news/2015-04-27/bali-nine-indonesia-ignored-anzac-day-plea/6423430">announcing the execution on Anzac Day</a> is simply mind-boggling.</p>
<p>In the midst of this lunacy, Indonesia’s most distinguished practising human rights lawyer, Mulya Lubis, has appeared on the side of Andrew Chan, Myuran Sukumaran and, as he has done for so long, on the side of sanity, civility and justice.</p>
<h2>Fight against executions part of a broader struggle</h2>
<p>The diminutive 65-year-old is an uncharismatic figure, who has gone largely unnoticed in the Australian media. Dr Todung Mulya Lubis is a Sumatran with a Berkley PhD. For over a quarter of a century he has been arguably Indonesia’s best defence against human rights abuse. Earlier this year, Murdoch University recognised his work as lawyer and academic by awarding him an Honorary Doctorate.</p>
<p>While still at law school at the University of Indonesia, Lubis started working for the newly established Lembaga Bantuan Hukum (LBH, Legal Aid Institute).</p>
<p>LBH was Indonesia’s first legal aid organisation. It was established in 1970, headed by the then young, idealistic Sumatran advocate Adnan Buyung Nasution and supported charismatic Jakarta Governor Ali Sadikin.</p>
<p>LBH was much more than a legal institution. In the 1970s and ’80s it was the epicentre of the tiny, idealistic opposition to the Suharto government. LBH spawned many social movements and non-government organisations, which underlay the eventual opposition movement that swept the strongman from power in 1998.</p>
<p>Foreign researchers, including those from Australia, flocked to the tiny offices of LBH whether to meet angry farmers or to hear seminars from distinguished Western academics. In the closely censored media and Javanese-centred politics of the Suharto regime, LBH was open to the poor and the powerless in Indonesia, as it was to radical, democratic ideals from the rest of the world.</p>
<p>Lubis worked in LBH for nearly two decades. He established its Human Rights Department, started the practice of publishing an annual Human Rights Report and went on to become LBH’s director. He remains the chair of the board of the foundation.</p>
<p>Thus Lubis rose to prominence alongside Indonesia’s Legal Aid Institute taking on the Suharto regime on behalf of its every opponent, of every shade, including East Timorese and Achenese activists, at a time when the Suharto regime was waging a brutal war in these areas.</p>
<p>Since the fall of the Suharto regime, Lubis has been central to the law reform process in Indonesia. He has been instrumental in the formation of Indonesian chapters of international bodies such as the Indonesia Crisis Group and Transparency International Indonesia.</p>
<p>In 2009, with co-author Alex Lay, Lubis published a <a href="http://books.google.com.au/books/about/Kontroversi_hukuman_mati.html?id=rBWurJdVyf4C&redir_esc=y">major legal text</a> on the death penalty in the context of the Indonesian constitution titled Kontroversi Hukuman Mati: Perbedaan Pendapat Hakim Konstitusi (The Death Sentence Controversy: Difference of Opinion among Constitutional Lawyers). </p>
<p>On April 15, just days before the announcement of the execution date of Chan, Sukumaran and six other people who were executed alongside them, Lubis tweeted (the original was in Indonesian):</p>
<blockquote>
<p>The death sentence can no longer be confronted simply by street protests and court cases. We must confront death sentences by abolishing the death sentence.</p>
</blockquote>
<p>There would have been no one better than Lubis to defend the young Australians on death row. </p>
<p>Since the fall of Suharto, everyone has expected Lubis to take a government position. It is widely believed that when he became president Jokowi had planned to offer Lubis the position of attorney-general. But he faced strident opposition from some of his corrupt and powerful backers, including the nations’ former president, Megawati Sukarnoputri.</p>
<p>There is no point speculating how different things might have been had Lubis been appointed to the role in place of Muhammad Prasetyo, the small-town Javanese military lawyer with little experience of the world outside of Indonesia.</p>
<p>In the early hours of this morning, Chan and Sukumaran were executed. Some hours later their Indonesian lawyer tweeted: I am sorry. I have failed. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"593112546439090176"}"></div></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"593113140931366912"}"></div></p>
<p>Hundreds of Indonesians and their Australian friends have responded with words of support. </p>
<p>So that the killings in Nusakambangan last night are not in vain, I hope every Australian will stand behind Mulya Lubis and his continuing efforts to abolish the death sentence and bring his nation’s legal system into the 21st century.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"591808209238687745"}"></div></p><img src="https://counter.theconversation.com/content/40950/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Krishna Sen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Indonesia’s most distinguished practising human rights lawyer, Mulya Lubis, is central to continuing efforts in Indonesia to abolish the death penalty.Krishna Sen, Professor of Indonesian Studies and Dean of Arts, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/362052015-01-22T19:02:24Z2015-01-22T19:02:24ZBali Nine: hypocrisy, politics and courts play out in death row lottery<figure><img src="https://images.theconversation.com/files/69718/original/image-20150122-27533-l5134k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Death row inmates Myuran Sukumaran and Andrew Chan find themselves at the centre of a series of complex Indonesian political controversies.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>One of the strongest arguments against the death penalty is that its administration is fundamentally unfair. Too often, the question of who receives a death sentence and whether and when it is actually carried out becomes more a matter of politics than of facts and law.</p>
<p>This is certainly the case for the two Australians, Myuran Sukumaran and Andrew Chan, on death row in Indonesia. They find themselves at the centre of a series of complex political controversies, all of which could directly affect their chances of survival.</p>
<p>Sukumaran and Chan are the only members of the <a href="http://en.wikipedia.org/wiki/Bali_Nine">Bali Nine</a> still sentenced to death for their role in attempting to smuggle 8.3 kilograms of heroin out of Bali to Australia in 2005. Indonesian President Joko Widodo has now rejected both <a href="http://www.smh.com.au/national/hopes-fade-for-bali-nine-member-myuran-sukumaran-as-clemency-bid-knocked-back-20150107-12jrno.html">Sukumaran’s</a> and <a href="http://www.abc.net.au/news/2015-01-22/bali-nine-member-andrew-chan-has-clemency-plea-rejected/6035846">Chan’s</a> pleas for clemency, leaving the pair facing execution by firing squad.</p>
<h2>Clemency is last hope on death row</h2>
<p>An application for clemency is usually made when the judicial process is exhausted. It is intended to be the last chance for a lighter sentence before execution takes place. The Chief Prosecutor’s office has indicated they usually <a href="http://www.news.com.au/world/bali-nine-australians-andrew-chan-and-myuran-sukumaran-to-be-executed-together-in-bali/story-fndir2ev-1227186440288">execute co-offenders together</a>.</p>
<p>Jokowi’s decisions on Chan and Sukumaran are consistent with recent statements he has made that he would <a href="https://theconversation.com/why-jokowi-ordered-the-execution-of-drug-traffickers-in-indonesia-35432">not grant clemency</a> to drug offenders. The death penalty is available in Indonesia <a href="http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Indonesia">for 17 offences</a> but usually imposed only for drugs, terrorism and murder. </p>
<p>For decades the majority of <a href="http://www.abc.net.au/radionational/programs/lawreport/story-segment-template/5808426#transcript">executions in South-East Asia</a> have been for drugs offences. Now Indonesian officials have said they aim to build a reputation for harsh treatment of drug offenders to match neighbouring Singapore and Malaysia, where, unlike Indonesia, <a href="http://www.academia.edu/7092813/The_Future_of_the_Mandatory_Death_Penalty_in_Malaysia_and_Singapore_Asian_Values_and_Abolition_in_Comparative_Perspective_with_Implications_for_Indonesia">death is mandatory</a> in many drugs cases.</p>
<p>Jokowi’s refusal to grant clemency also reflects a decision made in 2013 by his predecessor, Susilo Bambang Yudhoyono, to end the informal moratorium on executions he put in place after the Bali bombers (Imam Samudra, Mukhlas and Amrozi) were executed in November 2008. In 2013, executions resumed, targets were set and four prisoners met their deaths. Last weekend, six more <a href="http://www.abc.net.au/news/2015-01-18/indonesia-executes-six-drug-convicts-most-foreigners/6023518">were executed</a>, including five foreigners.</p>
<h2>A double standard for Indonesians abroad</h2>
<p>Indonesia’s efforts to prevent its own citizens being executed overseas therefore seem odd indeed. In recent years it established a taskforce and spent millions of dollars to hire lawyers and, where permitted, <a href="http://www.reuters.com/article/2014/04/04/us-indonesia-maid-idUSBREA330TC20140404">pay “blood money”</a> to ensure that Indonesian domestic workers in countries including Saudi Arabia and Malaysia escape the death penalty.</p>
<p>This obvious double standard has drawn much criticism, including from Indonesian civil society. The government justifies it by drawing a clear distinction between, on one hand, its overseas workers – many of them maids who have murdered abusive employers – and, on the other hand, drug offenders, whom it categorises with terrorists as “mass murderers”. This distinction has support in Indonesia, where a high-profile <a href="http://www.thejakartapost.com/news/2011/07/31/misguided-drug-laws.html">“war on drugs” policy</a> has been in place for years and many locals rely on overseas workers for remittances. </p>
<p>However, it does make it much harder for Indonesia to run an in-principle argument in favour of the death penalty, as leading Indonesian human rights organisations such as NGOs <a href="http://www.worldcoalition.org/KontraS-Commission-for-the-Dissapeared-and-Victims-of-Violence.html">KontraS</a> (Commission for the Disappeared and Victims of Violence) and LBH (the Legal Aid Institute) <a href="http://www.thejakartapost.com/news/2015/01/17/death-row-not-a-solution-fighting-narcotics-kontras.html">have been arguing</a>.</p>
<p>Many Indonesians still support the death penalty, including some active anti-drug NGOs. There is, however, a <a href="http://thejakartaglobe.beritasatu.com/news/calls-to-end-the-death-penalty-continue/">growing debate</a> about whether it is still appropriate in an open liberal democratic state <a href="http://www.thejakartapost.com/news/2015/01/20/activists-demand-alternative-death-row.html">committed to human rights</a> of the kind Indonesia claims to have become since Suharto fell in 1998.</p>
<h2>A question of politics as much as law</h2>
<p>This ambivalence over how the death penalty sits with recognition of human rights is reflected in the “bob each way” decision the Indonesian Constitutional Court made in 2007. It held that execution is not inconsistent with the guarantee of right to life in its liberal post-Suharto constitution. </p>
<p>However, the court also recommended that prisoners who have been on death row for ten years and who have shown reform and rehabilitation should have their sentences commuted to imprisonment.</p>
<p>Jimly Asshiddiqie, the Constitutional Court Chief Justice at the time, has recently complained that the government has completely ignored this part of the judgment. He has also <a href="http://www.theguardian.com/world/2015/jan/19/bali-nine-former-indonesian-judge-criticises-death-penalty-as-outdated">indicated discomfort</a> with his court’s decision to uphold the death penalty, suggesting the time may be right to abolish it. </p>
<p>Sukumaran and Chan were arrested in 2005, and prison authorities have described them as reformed <a href="http://www.news.com.au/national/andrew-chan-myuran-sukumaran-and-the-other-members-of-the-bali-nine-await-their-fate/story-fncynjr2-1227186598503">model prisoners</a>. If the Constitutional Court’s proposal was implemented they would have a strong argument for their death sentences being replaced by long jail terms.</p>
<p>As this suggests, Indonesia may be undergoing a slow transition towards abolition. Many newspapers, including the leading daily, Kompas, have published articles criticising Jokowi’s decision to resume executions. But this <a href="http://nasional.kompas.com/read/2015/01/19/15513411/Kontras.Eksekusi.Mati.Hanya.Akal-akalan.untuk.Lindungi.Bandar.Besar">shift in public opinion</a> does not seem to big enough or moving fast enough to save Sukumaran and Chan.</p>
<p>It may not move Jokowi much either. Indonesian political observers say that while he is a strong democrat and anti-corruption reformer, he is personally morally conservative and not greatly focused on human rights issues.</p>
<p>They also say that Jokowi is under massive political pressure to match the decisive hardline <a href="https://theconversation.com/tracing-prabowos-cultural-appeal-27930">“tough guy” image</a> of his defeated presidential rival, former general Prabowo Subianto, who made much of “standing up” to foreign influences. </p>
<p>Jokowi lacks strong elite support and is fighting hard to build a workable coalition to overcome Prabowo’s stranglehold on the national legislature, which has so far prevented any laws being passed. While granting mercy to Sukumaran and Chan might have helped Jokowi with the second-rank challenge of <a href="https://theconversation.com/qanda-abbotts-hand-of-friendship-to-indonesias-new-president-33180">building a relationship with Australia</a>, he might well have seen it as too damaging for his own political survival.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/69715/original/image-20150122-19761-22bze7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The potential execution of two Australian citizens may pose a threat to the Australia-Indonesia relationship.</span>
<span class="attribution"><span class="source">AAP/Eka Nickmatulhuda</span></span>
</figcaption>
</figure>
<h2>Courts divided over appeal rights</h2>
<p>Sukumaran and Chan’s lawyers have announced they will soon lodge a <a href="http://www.news.com.au/world/asia/six-executed-as-myuran-sukumarans-lawyer-plans-appeal-to-stop-firing-squad/story-fnh81fz8-1227188174626">second application</a> with the Supreme Court to re-open their case. This is known as a “PK” or “Reconsideration”. </p>
<p>As might be expected, lawyers for the pair will argue that Sukumaran and Chan’s rehabilitation should be taken into account. Indonesian authorities have said they will probably not execute while a related court case is pending, but the PK faces two problems. Both relate to political tensions between the Constitutional Court and the Supreme Court, Indonesia’s judicial “twin peaks”.</p>
<p>The Constitutional Court says there is no limit on the number of PKs a person may bring. The Supreme Court says only one is possible. The Supreme Court seems not to consider itself bound by the Constitutional Court and may therefore reject Sukumaran and Chan’s second PK out of hand. </p>
<p>For the same reason, if the Supreme Court does consider the PK on its merits, it may pay little heed to the Constitutional Court’s suggestion that after ten years’ rehabilitation, death penalty sentences should be commuted. Discussions have been arranged between the two courts to resolve their differences, but so far without much success.</p>
<p>This all means that despite the huge effort being made by their Indonesian and Australian lawyers – and by the <a href="http://www.news.com.au/national/we-are-going-to-exhaust-all-avenues-julie-bishop-on-saving-bali-nine-pair-from-execution/story-fncynjr2-1227189209086">Australian government</a> – Sukumaran and Chan’s future hangs on matters that have little to do with the actual crimes they committed or their own conduct since then.</p>
<p>Whether Sukumaran and Chan are executed depends on how all these factors play out and, in particular, the timing. In Indonesia, as in most countries that execute, death row is little more than a grim lottery.</p><img src="https://counter.theconversation.com/content/36205/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Lindsey has received funding from the Australian Research Council to research drugs law and the death penalty in Southeast Asia. He is chair of the Australia Indonesia Institute but this article reflects only his own personal views.</span></em></p>One of the strongest arguments against the death penalty is that its administration is fundamentally unfair. Too often, the question of who receives a death sentence and whether and when it is actually…Tim Lindsey, Malcolm Smith Professor of Asian Law and Director of the Centre for Indonesian Law, Islam and Society, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.