Category: Law

Government to move Abu Bakar Bashir to a Central Java prison

The Indonesian government will move ailing radical cleric Abu Bakar Bashir to a prison near his hometown in Solo, Central Java for humanitarian reason.

“[The decision] is final. We’ll just need to move him to Central Java,” chief security minister Wiranto told journalists on Wednesday.


On Tuesday, Wiranto said the government has made the decision by taking into account the firebrand cleric’s old age and poor health without compromising the legal and security aspects. He also said that Bashir will have access to medical treatment and if necessary, the government will take him to the hospital “using a helicopter”.

Bashir will be moved from his isolation cell in Gunung Sindur prison in Bogor, West Java to a prison near Klaten in Central Java where  he can be close to his family.

Earlier in the week, Ministry of Justice and Human Rights said Bashir is ineligible for house arrest. It was one of the options the government said it was considering as leniency to the ailing cleric.

“House arrest is only available for a defendant who is standing trial, while Bashir is no longer a defendant. He is a prisoner, convicted to serve time in prison,” Ade Kusmanto, a spokesman for the ministry’s Directorate General of Correction said.

Last week, Defense Minister Ryamizard Ryacudu told journalists at the state palace that house arrest for the cleric is very likely, as the government is weighing up which form of clemency it could give to Bashir. The cleric suffers from pooling of blood on his legs, a condition which requires him to undergo regular medical check-ups.

On Mar. 1, Bashir was taken to a hospital in Jakarta for treatment which his lawyer, Achmad Michdan, said had been scheduled for Nov. 2017. He is scheduled for another check up on Thursday.

President Joko Widodo said the government gave permission for Bashir to go to the hospital on humanitarian grounds.

Kusmanto said the cleric can ask the president for clemency, given that he is in poor health and will become an octogenarian this year. Another possibility is to demand parole, for which he will be eligible in June 2019 when he will have served two-thirds of his 15-year prison sentence.

Michdan said his client rules out both the options since applying for either one would mean that Bashir pleads guilty to the charges against him.

Bashir was convicted in 2011 for supporting paramilitary training in Aceh, and the firebrand cleric is described as the ideological icon of Jamaah Islamiyah (JI), including those who carried out bomb attacks in Bali in 2003.

“Bashir believes he is innocent because he was merely observing his faith as a Muslim. He was collecting money to fund training and travel for those who wanted to go as mujahideen to Palestine. He wasn’t rebelling against the country,” Michdan said.

Michdan said that it should be possible for the government to “relocate the place” where Bashir serves his sentence from Gunung Sindur prison to his house in Solo, Central Java.

He cited examples of jailed former Jakarta governor Basuki Tjahaja Purnama, who is serving his two-year sentence for blasphemy at a special police detention instead of a correctional facility, and East Timor resistance fighter Xanana Gusmao who had been imprisoned in Jakarta when he was fighting for East Timor’s independence from Indonesia. He was then confined to a house in Central Jakarta in 1999.

Terrorism analyst Adhe Bakti said even though house arrest is not regulated in the Criminal Procedures Code, Gusmao’s case was laden with political context at that time when East Timor was going for a referendum in which they voted for independence from Indonesia on Aug. 30, 1999.

“But the government could make a breakthrough by giving Bashir leniency to serve the rest of his sentence on house isolation based on humanitarian grounds. At least it would project a positive image of the government before the Islamists,” Bakti said.

Bakti warned that isolation remains necessary given Bashir’s revered position among militants.

“Even though he is no longer affiliated with ISIS, he still very much identified with radical teaching,” Bakti said.

This story has been updated from its original version in Arab News

Indonesian Constitutional Court rejects bid to ban sex out of wedlock

Indonesia’s Constitutional Court has rejected a petition to criminalize consensual sex outside of marriage.

The petition was filed by a group of conservative academics, who argued that provisions in the criminal code on adultery should extend to sex involving unmarried people.

The petitioners also wanted sex between people of the same sex to be outlawed.

Five judges of the nine-judge panel rejected the petition.

The judges who rejected the petition argued that it was not in line with civil liberties afforded by the constitution.

They also said the court had no jurisdiction to change the criminal code.

“The fact that the legal provisions are incomplete does not make it unconstitutional,” the judges said in their ruling, adding that the petitioners should instead propose changes to lawmakers.

Rights groups had voiced fears that a ruling in favour of the petition would threaten personal freedoms.

Pre-marital and homosexual sex is not illegal in Indonesia, except in autonomous Aceh province where a version of Islamic law, or sharia, is in force.

“The judicial review brought by the applicants is an attempt to undermine human rights protection in Indonesia,” said the Community Legal Aid Institute, a non-governmental organization, in a statement.

“We hope that in the future the Constitutional Court can maintain its role as a negative legislator and will not bow to pressure from various groups that act in the name of religious morality,” it said.

Indonesia is the world’s largest Muslim-majority country, where many see sex outside of marriage as taboo.

After IKEA, French designer Pierre Cardin loses trademark lawsuit in Indonesia

French fashion house Pierre Cardin has lost a lawsuit against an Indonesian businessman who has been using the name “Pierre Cardin” for his fashion products.

The Supreme Court ruled that the local version of Pierre Cardin was registered in 1977 and that it “does not piggyback on another brand’s fame.”

The French designer had registered the brand “Pierre Cardin” in Indonesia in 2009 and extended the patent registration in 2014.

Earlier this year, an Indonesian furniture company won the right to use the Swedish IKEA brand name after the Supreme Court ruled in favour of its lawsuit against the home furnishing giant.

IKEA opened its first store in Indonesia, located at Alam Sutera just southwest of Jakarta, in 2014 and has been able to continue to use the brand despite the court ruling.

The case involving Pierre Cardin, named after the designer who started his business empire in 1950, lodged a lawsuit  with the Central Jakarta commercial court against Alexander Satryo Wibowo for producing goods with the same brand.

Pierre Cardin is registered in countries around the world such as Australia, Brazil, Hong Kong, Japan, Denmark, Korea, Italy, Malaysia, Singapore, the United States, Britain, and Indonesia.

But the court court threw out the lawsuit on June 9, 2015. Pierre Cardin appealed the ruling.

The Supreme Court “rejects the plaintiff’s appeal of cessation.”

“The defendant always makes sure to include the words ‘product by PT Gudang Rejeki'” to make them different from genuine Pierre Cardin products,” according to the judges.

Swedish furniture giant IKEA recently lost a lawsuit  filed by a company from Surabaya that insists it has the right to the IKEA brand in Indonesia. The Supreme Court rejected the Scandinavian company’s appeal.

The Surabaya company, PT Ratania Equator had registered the IKEA trademark as an acronym for “Intan Khatulistiwa Esa Abadi”.

IKEA trademarked its name in Indonesia on October 9, 2006, and then again on October 27, 2010.

Doctors refuse to administer castration under Jokowi’s law

Indonesia’s medical  association said Thursday its members would refuse to administer chemical castration for child sex offenders, giving another blow to President Joko “Jokowi” Widodo’s emergency decree issued last month allowing such punishment.

The Indonesian Doctors Association (IDI) distanced themselves from the policy, although they said they shared Jokowi’s views that sexual offence against children is an extraordinary crime and supported policies that impose tougher punishment for child rape.

“With the additional punishment such as chemical castration that suggests assigning doctors as executors, IDI asked, based on the Honorary Council of Medical Ethics’ fatwa, which also refers to the Doctor ‘s Oath and Indonesian Doctors’ Code of Ethics, that its implementation does not involve doctors as executor,” IDI chairman Ilham Oetama Marsis said in the statement.

Ilham suggested the government seek other forms of additional punishment, saying scientific evidence showed chemical castration did not reduce predators’ sexual drives.

According to the new regulation in lieu of law, chemical castration will be carried out against an offender for a period of up to two years after the convict has undergone a prison term. Offenders below the age of 18 are not subject to this punishment.

Rights activists lauded the doctors’ stance, saying that the policy was made prematurely and without thorough consultations with various stakeholders including psychiatric and medical experts.

“IDI’s statement is a real blow for the government. The government’s choice to make this decision without further study and analysis and without involving those with medical and psychiatric competencies was a fatal move,” head of rights advocacy group Institute for Criminal Justice Reform (ICJR), Supriyadi Widodo Eddyono said.

Human Rights Working Group (HRWG) said IDI’s statement showed mounting refusal to this policy was not without grounds and it should serve as a lesson to the government to open public participation in its policy making, so that the policy could touch on the real problems on the ground and executable.

“We reaffirmed that our refusal to chemical castration does not mean we tolerate sexual offences. Such crimes, especially against children, should be banished and severely punished but it doesn’t mean that we have to disregard human rights and human values,” said Muhammad Hafiz, executive director of HRWG.

The government regulation in lieu of law, or Perppu would be an amendment to the 2002 Child Protection Law, which punished child sex offenders by up to 15 years in prison and a maximum fine of  300 million rupiah. It stipulates child sex offenders who cause their victims to suffer serious injuries, mental disorders, infectious diseases, the loss or malfunction of the reproductive organs and/or death to have additional, tougher punishment, which includes forced chemical castration.

The National Commission on Child Protection (Komnas Anak) had campaigned for such a decree, saying that Indonesia is in a state of emergency with regard to child sex abuse. The Indonesian Child Protection Commission (KPAI) data showed that the number of child abuse cases significantly jumped from 2,178 cases in 2011 to 5,066 cases in 2014.

The House of Representatives is yet to deliberate the Perppu before it is passed into law, but Justice and Human Rights Minister Yasonna Laoly has said that the Perppu is effective immediately after it was signed by the president.




Rights groups criticise Indonesia over chemical castration for child sex offenders

Human rights advocates has decried an emergency decree signed by Indonesian President Joko “Jokowi” Widodo allowing for chemical castration for child sex offenders, saying that the punishment amounts to torture.

On Wednesday, Jokowi signed a government regulation in lieu of law, or Perppu, that stipulates child sex offenders who cause their victims to suffer serious injuries, mental disorders, infectious diseases, the loss or malfunction of the reproductive organs and/or death to have additional, tougher punishment, which includes forced chemical castration.

The Perppu would be an amendment to the 2002 Child Protection Law, which punished child sex offenders by up to 15 years in prison and a maximum fine of  300 million rupiah. According to the new regulation, chemical castration will be carried out against an offender for a period of up to two years after the convict has undergone a prison term.

Offenders below the age of 18 are not subject to this punishment.

“We don’t agree [with the punishment]. It’s contrary to the anti-torture convention that Indonesia ratified in 1998,” a commissioner from the National Commission on Violence against Women (Komnas Perempuan), Mascruchah told The Parrot, referring to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Amnesty International (AI) has also voiced opposition to the punishment, arguing that it violates the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a party.

AI urged the government to immediately repeal the amendments, which were made following several high-profile cases of child rape and calls by politicians and child rights advocates for harsher punishments for those who commit sexual offences against children.

Vice President Jusuf Kalla called on those who opposed the punishment to look at the rape victims’ rights that the perpetrators violated.

“Those who rape anyone, especially children, violate human rights,” Kalla was quoted as saying by state news agency Antara on Friday.

The government announced in October that it would set the punishment on convicted sexual predators on children.

The National Commission on Child Protection (Komnas Anak) had backed such a decree since then, saying that Indonesia is in a state of emergency with regard to child sex abuse.

The Indonesian Child Protection Commission (KPAI) data showed that the number of child abuse cases significantly jumped from 2,178 cases in 2011 to 5,066 cases in 2014.


Indonesia needs creative economy law to spur job creation

By Muhammad Faiz Aziz*

Indonesia should put in place a law on the creative economy to allow businesses in the sector to operate with legal certainty.

Supporting the growth of the creative economy will spur job creation, an answer to the country’s problems of rising inequality, youth unemployment and exploitation of Indonesian workers abroad.

What is the creative economy?

Indonesia lists 15 industries as part of the creative economy: architecture; art; craft; design; fashion; video, film and photography; interactive games; music; performing arts; publishing and printing; computer services and software; television and radio; research and development; and culinary.

These industries have the potential to provide much-needed jobs in Indonesia. The World Bank has reported that, despite sustained growth in the past decade, Indonesia is facing rising inequality between rich and poor. Only 20% of Indonesia’s population benefited from the country’s growth, while 200 million people are struggling.

Large numbers of Indonesians of productive age have low education levels. Many are stuck in low-wage informal jobs.

Some work as migrant workers in countries such as Malaysia, Saudi Arabia and Hong Kong. Indonesia migrant workers are overworked according to The International Labour Organisation. Some undergo torture and rape. More than 200 migrant workers are facing the death penalty abroad.

The growth of the creative economy may help reduce the unemployment rate in Indonesia, perched at around 7.39 million people or 6.35% of the total workforce. In 2014, 7.1% of Indonesia’s GDP came from the creative economy, absorbing up to 12 million workers.

The popularity of IT-based start-up businesses that provide apps for transportation services in Indonesia, such as Go-jek, Grab Bike, Grab Taxi, Uber, Blue-Jek and Lady-Jek, is a great example of the creative economy’s potential.

Go-jek, which connects motorcycle taxi drivers with passengers, has now attracted 200,000 motorists, half of them in Jakarta. Motorists who uses these apps have reported a two to three times increase in income.

Go-jek plans to expand the app for other services such as housecleaning, massage and salon services through Go-Clean, Go-Massage and Go-Glam. These three apps have potential to recruit domestic workers, therapists and hairdressers to provide house cleaning, massage and salon services on demand, and would potentially increase their incomes.

Countries such as Australia and the United States have expressed interest in investing in the growing digital creative industry in Indonesia.

Bill on creative economy

Currently, a bill on the creative economy is in the Indonesian parliament. Lawmakers should make it a priority to pass the bill into law.

To provide guidelines for the government, businesses and intellectuals to develop creative industries, Indonesia’s Ministry of Trade had published policy blueprints “Creative Economy Development Plan 2009-2015” and “Creative Industry Development Towards a Creative Economy 2025”. President Joko Widodo has also set up a Creative Economy Agency (BAKREF). The agency is tasked with policy making, program planning, coordination and synchronisation with other government agencies, guidance and supervision.

But this is not enough. Without legally binding regulation of the creative economy, industries are being subjected to rigid sector-based regulations. This is creating problems for IT-based referral businesses such as Uber and Gojek, which have been facing legal hurdles as the Transport Ministry deems them illegal.

A law on the creative economy would support business players who are looking to create innovative ways to provide goods and services. It would provide incentives for businesses, such as tax holidays, access to financing sources and intellectual property rights (IPR) facilities.

The legislation will also create rules and obligations for business players. These incentives can be taken away from them if violations occur.

Legislating for the creative economy will bring certainty for businesses and legally bind the government to support the sector. In the end, it could create wider employment opportunities in Indonesia.

Muhammad Faiz Aziz is a Researcher at the Indonesian Center for Law and Policy Studies (PSHK). This article was first published by