Category: Law

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 theconversation.com

Indonesia prepares for simultaneous regional elections

Indonesian President Joko Widodo has announced the country’s first simultaneous elections for regional heads will be a national holiday, to the delight of school children and office workers.

The elections, scheduled for December 9, will take place in nine provinces, 224 regencies and 36 cities.

The next batch of local elections is scheduled to be held in February 2017 in seven provinces, 76 regencies and 18 cities. In June 2018, polls for local chiefs will be held in 17 provinces, 115 regencies and 39 cities.

Revelations of fake documents, infighting between rival factions within political parties, legal and health status of candidates, as well as other administrative issues have marred the upcoming December elections.

However, the government insists that they will go ahead as scheduled.

Simultaneous, nationwide local elections will be held in 2027. Elected governors will be inaugurated at the same time by the president afterwards.

The Indonesian Constitutional Court in July ruled in favour of a petition to repeal an article in the Regional Election  Law banning family members of an incumbent from running for executives positions.

The court argued that the Constitution guarantees the right of every individual to elect and be elected.

Vote count in Indonesia elections
Vote count in Indonesia elections

Political dynasties

The court’s ruling has drawn heavy criticism, as the provision in the election law was intended to rein in dynasty politics, which has become entrenched in Indonesia since decentralization was introduced in 2001.

Legal experts and democracy activists say the practices of patronage, nepotism, cronyism and rent seeking have led to the embezzlement of massive amounts of money from regional coffers

The petitioner, Adnan Purichta Ichsan, is a member of the South Sulawesi Regional Representatives Council (DPRD) and is the son of incumbent Gowa Regent Ichsan Yasin Limpo and nephew of current South Sulawesi Governor Syahrul Yasin Limpo.

Adnan’s grandfather Muhammad was also a former Gowa regent.

Adnan is planning to run in the upcoming regional election scheduled in December this year, seeking to replace his father as Gowa regent. The Limpo family also has brothers, sisters, sons and in-laws in key posts in regional legislatures and the House of Representatives (DPR).

There are dozens of family dynasties that rule in different parts of Indonesia, creating concern that nepotism is taking a whole new level in regional elections, a practice despised by the majority of Indonesians.

Another notorious family dynasty in Indonesian politics is Ratu Atut Chosiyah, former governor of Banten who is currently in jail for corruption.

Atut has dozens of family members in top posts in Banten province at regency, city and provincial levels, including in regional legislative bodies and party leadership.