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The process of law enforcement in Indonesia has had a bad record such as in the case of Sengkon and Karta. The two were accused of committing theft and murder of husband­and­wife Sulaimans that took place in Bekasi in 1974. Bekasi District Court then sentenced Sengkon to 12 years of prison and Karta to 7 years. Asia Catalyst – an NGO based in New York – held the 2013 Right to Health Advocacy Training in Bangkok. Asia Catalyst provides management and advocacy training to grassroots groups in Asia which are working to promote the right to health. Once again, a child from a poor socio­economic background has become trapped in illicit narcotic trafficking in Jakarta. In May 2013, a sixteen year old boy named Aldo (not his real name) appeared before the Central Jakarta District Court. Aldo was a student in Taman Siswa Senior High School when he was arrested by the police for his alleged involvement in drug trafficking. Judicial corruption does not seem to pick and choose where it will occur. It can happen in big cities like Jakarta or a small city like Jember in the province of East Java. People may find it difficult to prove that judicial corruption exists, but one can feel that it is there.
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EDITOR'S NOTE LBH Masyarakat presents you the April May 2013 edition. HUMAN RIGHTS, LAW, AND POLITICS The process of law enforcement in Indonesia has had a bad record such as in the case of Sengkon and Karta. The two were accused of committing theft and murder of husbandandwife Sulaimans that took place in Bekasi in 1974. Bekasi District Court then sentenced Sengkon to 12 years of prison and Karta to 7 years. HUMAN RIGHTS, HIV, AND DRUG POLICY From 21 to 26 May 2013, Asia Catalyst – an NGO based in New York – held the 2013 Right to Health Advocacy Training in Bangkok. Asia Catalyst provides management and advocacy training to grassroots groups in Asia which are working to promote the right to health. FROM OUR ARCHIVE Once again, a child from a poor socioeconomic background has become trapped in illicit narcotic trafficking in Jakarta. In May 2013, a sixteen year old boy named Aldo (not his real name) appeared before the Central Jakarta District Court. Aldo was a student in Taman Siswa Senior High School when he was arrested by the police for his alleged involvement in drug trafficking. Judicial corruption does not seem to pick and choose where it will occur. It can happen in big cities like Jakarta or a small city like Jember in the province of East Java. People may find it difficult to prove that judicial corruption exists, but one can feel that it is there. http://www.lbhmasyarakat.org
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Page 1: Caveat - Volume April-May 2013 - LBH Masyarakat

EDITOR'S NOTE LBH Masyarakat presents youthe April ­ May 2013 edition.

HUMAN RIGHTS, LAW, AND POLITICS

Examing Judicial Review in theIndonesian Criminal JusticeSystem

The process of law enforcement inIndonesia has had a bad record such as inthe case of Sengkon and Karta. The twowere accused of committing theft andmurder of husband­and­wife Sulaimans thattook place in Bekasi in 1974. Bekasi DistrictCourt then sentenced Sengkon to 12 yearsof prison and Karta to 7 years.

HUMAN RIGHTS, HIV, AND DRUG POLICY

Right to HealthAdvocacy Training,Asia Catalyst 2013

From 21 to 26 May 2013, Asia Catalyst – an NGO based inNew York – held the 2013 Right to Health AdvocacyTraining in Bangkok. Asia Catalyst provides managementand advocacy training to grassroots groups in Asia whichare working to promote the right to health.

FROM OUR ARCHIVE

A Story ofAldo

Once again, a child from a poor socio­economic background hasbecome trapped in illicit narcotic trafficking in Jakarta. In May 2013, asixteen year old boy named Aldo (not his real name) appeared beforethe Central Jakarta District Court. Aldo was a student in Taman SiswaSenior High School when he was arrested by the police for his allegedinvolvement in drug trafficking.

A LetterFrom Jember

Judicial corruption does not seem to pick and choose where it willoccur. It can happen in big cities like Jakarta or a small city likeJember in the province of East Java. People may find it difficult toprove that judicial corruption exists, but one can feel that it is there.

Volume April - May 201 3

http://www.lbhmasyarakat.org

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MANAGING EDITOR:

Ricky Gunawan

EDITORIAL BOARD:

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

FINANCE AND CIRCULATION:

Ahmad Zaki, Herlina

REVIEWER:

Miki Salman

DESIGN AND LAYOUT:

Vimala Putta

ADDRESS:

Tebet Timur Dalam III, No. 54AJakarta 12820, INDONESIA

CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta,Indonesia. All rights reserved. Neither this publication nor any part of it may be reproducedwithout prior permission of the LBH Masyarakat.

This publication is supported by the Levi Strauss Foundation. The content of this publicationdoes not necessarily reflect the opinion or position of the Levi Strauss Foundation.

CAVEAT welcomes any feedback and contributions. If you are interested in contributing a guesteditorial piece or article, please contact us at [email protected] or [email protected]

LBH Masyarakat welcomes any financial contribution for the development of CAVEAT.

Name : Lembaga Bantuan Hukum MasyarakatBank : Bank MandiriBranch : Tebet Timur, Jakarta, IndonesiaNo.Acc. : 1 24–000–503–6620SwiftCode : BMRIIDJA

Editor's Note ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

HUMAN RIGHTS, LAW, AND POLITICS.... . . . . . . . 4

Examining Judicial Review in the IndonesianCriminal Justice System

HUMAN RIGHTS, HIV, AND DRUG POLICY.... . 9

Right to Health Advocacy Training, Asia Catalyst2013

FROM OUR ARCHIVE .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1

A Story of Aldo

A LETTER FROM JEMBER .... . . . . . . . . . . . . . . . . . . . . . . . . 1 4

To Bribe or Not To Bribe

Phone :Fax :E­mail :

Website:

+62 21 830 54 50+62 21 8370 99 [email protected]@lbhmasyarakat.orgwww.lbhmasyarakat.org

CAVEAT | April - May 2013 2

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In this edition, we present you – as usual – four columns of articles. In Human Rights, Law, and Politics,

Muhammad Afif – LBH Masyarakat’s public defender – examines the pros and cons of the concept of

judicial review (PK) in the Indonesian criminal justice system. In his article entitled Examining Judicial

Review in the Indonesian Criminal Justice System, Afif first investigates the history of PK and then

analyses its issues. One of these limitations is the fact that PK can only be done once. This, he argues,

conflicts with the notion of justice. Afif also questions the inconsistency of PK in practice, as the

prosecutor may sometimes file for PK where on paper they do not have the legal standing to do so.

In the Human Rights, HIV, and Drug Policy column, Ilham Sofiar – a caseworker at LBH Masyarakat –

shares his experience in attending the Right to Health Advocacy Training organized by the Asia Catalyst in

May 2013. Meanwhile in the From Our Archive column, our casework coordinator Antonius Badar reports

on our experience in assisting a juvenile in a narcotics case in A Story ofAldo. Fortunately Aldo (not his

real name) managed to be returned to his parents despite a difficult struggle in the legal process.

Dhoho Sastro – Director of the LBH Masyarakat Jember Office – has written an article entitled To Bribe

or Not To Bribe in A Letter from Jember. In his article Sastro shares his insights on bribery – a common

phenomenon and frequently believed by our clients to be an effective way to win a case. Bribery (or

extortion) in the Indonesian judicial system is like a bad scent that everyone can smell but no-one can find

the source. Sastro’s experience with the LBH Masyarakat Jember Office proved that bribery fails.

Criticisms or any comments as always are appreciated to improve CAVEAT.

CAVEAT | April - May 2013 3

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HUMAN RIGHTS, LAW AND POLITICS

Examining Judicial Review inthe Indonesian CriminalJustice SystemMuhammad Afif Abdul Qoyim1

The process of law enforcement in Indonesia has had a bad record such as in the case ofSengkon and Karta. The two were accused of committing theft and murder of husband­and­wifeSulaimans that took place in Bekasi in 1974. Bekasi District Court then sentenced Sengkon to 12years of prison and Karta to 7 years. For six years they were incarcerated in Cipinang Prisonuntil one day another convict, Gunel, also incarcerated in Cipinang Prison, came forward andconfessed that it was he who murdered the husband­and­wife couple. With regard to thisconfession, the Bekasi District Court sentenced Gunel to 12 years of prison. However, the factthat there was bow new evidence, that is, the discovery of the actual perpetrator, did notautomatically meant that Sengkon and Karta could walk free immediately. The situation created alegal vacuum as to the requirements and procedures for judicial review (peninjauan kembali) asa mechanism to correct prior court decisions.

The situation was immediately responded by the then Head of the Supreme Court, Prof. OemarSeno Adji, who also acted as the Head of the Panel of Judges along with Busthanul Arifin, andPurwosunu, as members of the panel in the judicial review of the case of Sengon and Karta. Theoutcome of the judicial review is reflected in the Supreme Court decision number66/PK/KR/1980, of 31 January 1981, which, essentially, ruled that Sengkon and Karta wereproven not guilty.

The silver lining from the Sengkon and Karta case was a lesson that the early reformedIndonesian criminal justice system giving a mechanism for judicial review in Law Number 8 of1981 (Criminal Procedural Code). Although, initially the procedure took into consideration theSupreme Court Regulation Number 1 of 1980 regarding Judicial Review of Decisions withPermanent Legal Force.

The Criminal Procedure Code (KUHAP) elaborates the mechanism for judicial review (PK),including the basis and reasons for PK application. Generally speaking, PK is only limited tocertain subjects, namely those who are entitled to applying for PK; the convicts or their heirs asregulated in Article 263 (1) of KUHAP.

Background

1Muhammad Afif Abdul Qoyim is Advocacy Staff at Lembaga Bantuan Hukum Masyarakat(LBH Masyarakat).

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The object of a judicial review is legal decision with permanent legal force as stipulated in Article263 (1) of KUHAP. Whereas the bases for PK are limited to three according to Article 263 (2) ofKUHAP, namely:

a. “if there is a new situation that would lead to a strong inference, that if such situationwas known at the time of the proceedings, the outcome would be an acquittal of all legalcharges or [that] prosecutor’s charges would not be acceptable or with respect to thecase a lighter criminal provisions would be applied;

b. if in the various decisions there are statements that something has been proven,however the matter or situation as the basis or reason for the decision that was declareproven, apparently created a contradiction;

c. if the decision clearly demonstrated a clear judge’s error or mistake”.

From the above stipulations, one can infer that a decision that factually contains errors can becorrected. This concept is consistent with Taufik Rahayu Syam who proposed severalconsiderations to reopen the door for judicial review, including:

1. “Even though a case has been decided at the first, appellate and cassation levels thathas permanent legal force, there are concerns that there may be errors in theexaminations because human nature although he is a judge is not free from error andnegligence and shortcomings;

2. It may be that when a case is decided, apparently there are elements that areunhealthy such as lies, and deceptions so as to lead to injustice to one of the parties inthe case;

3. It would be improper to maintain a decision that has juridical flaws in the life of society,so that it would be proper to provide an extraordinary opportunity to parties that areharmed by filing a PK application in the case that already has a permanent legal force.”

Analysis: Problems in Judicial Review Practice

Limitation of Judicial ReviewArticle 268 (3) of KUHAP regarding the procedural code about judicial review stipulates that PKcan only be filed once. This provision basically limits PK filing to only once. Filing for PK morethan once is not only impossible but in practice the majority of PKs end up with the verdict“reject” as experienced by Joko Tjandra in the Bank Bali cessie case number:100/PK/Pid.Sus/2009, and the former Governor of Bank Indonesia Syahril Sabirin in casenumber: 167 PK/Pid.Sus/2009, as well as the capital cases of Fabianus Tibo and company. Theexistence of such decisions provide more legitimacy regarding limitation of PK as reflected inArticle 24 (2) of Law Number 48 of 2009 Regarding Judicial Authority, which reads:

“with respect to judicial review decisions [there] cannot be [another] judicial review”.

Based on the above law, many justice seekers who feel that their constitutional rights have beenharmed [have] filed for constitutional review of PK limitation that is limited to only once with theConstitutional Court. One such effort was by the former Head of the Corruption EradicationCommission, Antasari Azhar, in the case number: 34/PUU­XI/2013. In the correction to hissecond submission dated 25 April 2013, Antasari conveyed that “we feel that if PK can only bedone once, which thus far had been said for the sake of legal certainty, we feel this is very unjust.

Because the legal certainty actually, in our opinion, has already happened since the cassation

decision is inkracht, ordinary legal efforts. PK, [is an] extraordinary legal effort, so that PK does

not postpone the execution, such is the meaning. So that nothing is disrupted [as far as] the due

process of law [goes] with respect to a case”.CAVEAT | April - May 2013 5

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With respect to that request, there are pros and cons from several legal experts. Those whosupport limiting PK are basically of the opinion that applying for PK more than once does notprovide the guarantee for legal certainty as mandated by Article 28 D (1) of the 1945 Constitutionof the Republic of Indonesia. Additionally, repeated application of PK will injure the principle of asimple, expedient, and affordable criminal justice to avert a protracted court process.

Whereas those who reject limiting PK essentially argue that [limiting] PK application to only oncegoes against the principle of justice, as mandated in Article 24 (1) of the 1945 Constitution of theRepublic of Indonesia, which provides that judicial authority is independent in organizing thejudiciary to uphold the law and justice. On the other hand, the regulation [that limits] PK to onlyonce will only obstruct the right to obtain justice for convicts sentenced to death, assuming thatnew evidence is to be found later while first PK has been filed.

The above polemics in practice do not only apply to Supreme Court judges in adjudicatingsecond PK. This experience can be seen in the case of Nyayu Saodah Binti Alm. K.A. Kosim(Grandma Saodah) in the case number: 183 PK/PID/2010. In this case, the Supreme Courtaccepted the second PK application by Grandma Saodah. The first PK had been filed by theGeneral Prosecutor beforehand. The reasons used by Grandma Saodah in filing her second PKwere as follows;

a. That the first PK filed by the General Prosecutor with the case number:41 PK/Pid/2009 there was a clear mistake made by the panel of judges. This isbecause the decision in the civil case number: 532/Pdt/2004/PT.BDG Jo.Cassation Decision number: 1434 K/Pdt/2005 that served as the basis for theProsecutor General’s filing has been annulled by the PK decision number:803 PK/Pdt/2008;

b. That PK I by the General Prosecutor does not have a solid basis even thoughthe argument used was for the public interest as practiced in the case of MuktarPakpahan. Because basically this case is purely a civil case (private) and hasnothing to do with public interest.

With the above reason, the Supreme Court in its consideration implicitly referred to the action ofthe General Prosecutor in filing for PK that was seen as closing the door to justice for theconvict/her heirs to file for PK. Thus, the Supreme Court needed to consider the PK filed by theconvict. Furthermore, the bases proposed by Grandma Saodah have been granted by theSupreme Court and mentioned that there were various decisions that were contradictory in onecase as regulated in Article 263 (2) and the Supreme Court Circular Number 10 of 2009 point 2which in essence provides that [if] in one case object there are two or more contradictorydecisions then PK can be filed. This consideration basically is related to the existence of the civildecision in the case number: 803 PK/Pdt/2008 as the decision that annulled the decisionnumber: 523/Pdt/PT.BDG Jo. 1434 K/Pdt/2005. The last two decisions served as the basis forthe General Prosecutor to file PK number: 41 PK/Pid/2009. Thus, with the PK decision in the civilcase number: 803 PK/Pdt/2008 that was made as the basis for PK by Grandma Saodah, theSupreme Court in its verdict, annulled PK Decision number: 41 PK/Pid/2009 Jo. Decisionnumber: 1956 K/Pid/2007 Jo. Decision number: 296/Pid/B/2006/PN.BDG.

The case of Grandma Saodah above is a fact that illustrates that multiple filing for PK can bejustified with the condition that the basis for filing the judicial review is that there are contradictorydecisions in one case object as provided in Article 263 (2) letter (b) KUHAP Jo. Point 2 SCCircular Number 10 of 2009.

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In addition to the case of Grandma Saodah there had also been cases where PK was filed byparties without the legal standing as parties entitled to file PK. This can be seen in case number:1 PK/Pid/1984, of 20 February 1984. In that case the person filing for PK is the owner ofevidence, namely, the ship that was previously used by other parties to commit the crime. In thatcase it can be concluded that the owner of the evidence (the ship) could file for PK as he wasinvolved in the commission of the crime committed by the convict. The Supreme Court, therefore,in its decision stated that “the judicial review cannot be accepted” with the reason that “the PKapplicant is not the convict or his heir as provided in Article 263 (1) of KUHAP”.

In the above case, number: 1 PK/Pid/1984, it can be implied that the closure of opportunity to filefor PK for the convict/heirs is because the party who first applied for PK is the owner of theevidence who legally does not have a legal standing as PK applicant subject. The fact that therewere efforts by the evidence owner applying for PK clearly takes hostage the convict’s/heirs’ rightto justice. The legal event resulted from the regulation of PK in KUHAP that only limits PK toonce as provided in Article 268 (3) of KUHAP.

The variety of cases above has basically gone against rules regarding limitation of PK that canonly be done once. Even though it still considers the basis and particular situations of why PK isfiled more than once.

PK application by General Prosecutor

The Supreme Court in 1996 made a spectacular legal breakthrough in the criminal justicesystem. The Supreme Court accepted a PK application filed by General Prosecutor in the caseof Muktar Makpahan, case number: 55 PK/Pid/1996, of 25 October 1996. In the legal standing ofthe PK filed by the GP, the Supreme Court did accept. Which means that formally the PKapplication had met the requirements as provided in the KUHAP. Whereas, as specified in Article263 (1) of KUHAP, the party that is entitled to file PK application is limited to certain legalsubjects, namely the convicts or his/her heirs. Explicitly, the provision does not say the GP as aparty entitled to file PK application. However, the provisions regarding parties entitled to file PKwere again set aside by the Supreme Court.

However, in the case of H. Mulyar Bin Samsi, case number: 84 PK/Pid/2006, the PK applicationfiled by GP, the Supreme Court formally rejected the PK application. Because KUHAP, asspecified in Article 263 (1) affirmatively and in a limited fashion only specified that the convict orthe heirs are parties entitled to apply for PK. With regard to the role of GP in applying for PK, theSupreme Court considers it a violation to the application of procedural law.

Some of the decisions above contain legal contradictions. In the case of Muktar Pakpahan, theSupreme Court accepted the legal standing of GP as a party entitled to apply for PK, while in thecase of H. Mulyar Bin Samsi, the Supreme Court rejected the legal standing of GP as the partyapplying for PK. This fact indicates that the PK practice that exists today often invites andcontains problem.

On the other hand, relying on the case of Muktar Pakpahan regarding the acceptance of legalstanding of GP as a party to file for PK, GP often referred such case when they submit a PKapplication. This can be seen in the case of Soetiyawati alias Ahua Binti Kartaningsih in casenumber: 15 PK/Pid/2006. In that case, again, the Supreme Court formally accepted the legalstanding of GP in filing PK.

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

Conclusion and Recommendation

ConclusionProvisions regarding filing extraordinary legal efforts, namely, judicial review are clearly andexplicitly stated in the Criminal Procedure Code (KUHAP). Along the way, the provisionsregarding PK were not free from problems and debates. At least the polemics that developedpertained to the quality of the legal norms and application of the legal norms themselves. Theproblems become more evident in PK application that is only limited to once as stipulated inArticle 268 (3) of KUHAP. This one­time limit to PK application appears to be a problematic legalissue. This context can be seen from the pros and contras that appeared among legal expertswith regards to the doctrine of legal certainty and the vision of justice. Those who support thelimitation to PK argue that giving more than one opportunity to apply for PK will not ensure therealization of legal certainty as reflected in Article 28 D (1) of the 1945 Constitution. Whereasthose who reject the limitation of PK application argue that the justice process shall beconducted not only to gain legal certainty but to achieve justice.

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

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HUMAN RIGHTS, HIV AND DRUG POLICY

Right to Health Advocacy Training,

Asia Catalyst 2013

From 21 to 26 May 2013, Asia Catalyst – an NGO based in New York – held the 2013 Right toHealth Advocacy Training in Bangkok. Asia Catalyst provides management and advocacytraining to grassroots groups in Asia which are working to promote the right to health. Theparticipants came from nine countries in the Asia Pacific region: Indonesia, China Tibet, Vietnam,Hong Kong, Cambodia, Australia, India, Myanmar and the Philippines.

On the first day of training, the participants discussed rights­based advocacy together withrepresentatives from relevant government institutions. They analyzed some problems and usedstrategic thinking skills to seek solutions. Each participant shared information about theirexperience in advocacy and the successes and constraints they had encountered in theircountry. A common problem experienced in most of the communities was the denial of their rightsas citizens. The participants explained that community members are often stigmatized anddiscriminated by the government. For example, in Nepal and India stigma and discrimination arestill experienced by people living with HIV when accessing health services.

An overview of human rights and UN human rights mechanisms was discussed on the secondday of training. In this session, the participants discussed human rights issues that were mostrelevant to their communities, including useful UN human rights mechanisms and how they couldbe used for advocacy purposes. This session was followed by a discussion about how to learnand apply the strengths, weaknesses, opportunities and threats of the advocacy plan and whatkind of benefits this might have for the organization.

After this, the participants were given materials on the Global Fund. The participants learnt aboutthe issues surrounding how the Global Fund works and its new funding initiatives. It is hoped thatthe participants will use the Global Fund funding mechanism for their organizations.

The third day began with a discussion on the purpose of advocacy, how to develop an advocacyframework and define advocacy goals in a more specific way. It was followed by a session onhow to mobilize communities, examined in the context of participants’ real­life experiences withcommunity advocacy for marginalized and criminalized groups. The participants exchangedstories and learned from each other. One example was the work of the Thai Drug Users Network(TDUN), which was established in 2002 to promote and provide education on human rights andharm reduction for people who use drugs. Their work aims to oppose the ‘war on drugs’approach that hinders the human rights of people who use drugs and to empower drug users inThailand through advocacy. Another example was the work of the Asia Pacific Network of PeopleLiving with HIV (APN +), which was established in 1994 in Kuala Lumpur with the secretariatoffice in Bangkok. APN+ aims to create a better world for people who are HIV positive, by tryingto reduce stigma and discrimination and improve access to treatment. Their activities includeadvocacy and community mobilization, intellectual property rights and access to more affordablemedicines.

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Following this, the participants learned more about the opportunities that exist in advocacysupport and technical agencies or UN commissions (e.g. UNAIDS). This day concluded with asite visit to an NGO that fights for the rights of sex workers, namely the Asia Pacific Network ofSex Workers (APNSW) in Bangkok. This visit aimed to teach participants about the work done bythe organization, which focuses on using art in advocacy and empowering sex workers throughthe handicrafts they make.

On the fourth day of training, the participants discussed how to identify and access targets andallies in connection with the advocacy plan that they would make. The participants then had theopportunity to consult with experts to identify the major challenges in writing an advocacy plan.

This discussion continued on the fifth day. It focused on how to evaluate risk and further developthe advocacy plans that had been made. The participants then had the opportunity to discusshow to write an abstract for the 2013 International Congress on AIDS in Asia and the Pacific(ICAAP), which was to take place from 18 to 22 November 2013 in Bangkok.

On the last day of training the participants had to devise an advocacy action plan to beimplemented. They had to consider the possibility of a regional or national level of cooperationand how to communicate between future participants.

The health and rights advocacy training concluded with a summary of the discussions and anevaluation of the training to understand what had been done well, what had been achieved andwhich areas needed improvements.

The participants then met again to discuss their progress on their advocacy plans in November2013.

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FROM OUR ARCHIVE

A Story ofAldo

Antonius Badar1

Once again, a child from a poor socio­economic background has become trapped in illicitnarcotic trafficking in Jakarta. In May 2013, a sixteen year old boy named Aldo (not his realname) appeared before the Central Jakarta District Court. Aldo was a student in Taman SiswaSenior High School when he was arrested by the police for his alleged involvement in drugtrafficking. LBH Masyarakat represented Aldo throughout the trial process because of his ageand the fact that he comes from a poor family. In addition, the allegation seemed unclearbecause Aldo was tricked in a situation that made him have to face the legal process. Theprosecutor demanded two years imprisonment for Aldo. The judges found Aldo to be guilty butreturned him to his parents, requiring them to report to the Central Jakarta Correctional Centeronce a month for a year.

Aldo Was Subject to Significant Peer Pressure

It is common knowledge that teenagers frequently face peer pressure during adolescence. Itappears that the influence of peers – and the desire to be socially accepted – far exceeds that ofparents, teachers or religion. This influence can, of course, be positive or negative. According tothe American Academy of Child and Adolescent Psychiatry, the majority of teens with substanceabuse problems began using drugs or alcohol as a result of peer pressure. It is clear that peerpressure played a significant role in Aldo’s case.

Aldo was regarded in his neighborhood and school as a polite, well­behaved person. He was nota trouble­causer, so his arrest came as a surprise to the community. Aldo’s parents divorcedwhen he was in elementary school and, due to the lack of harmonization in his family, Aldotended to spend much of his time out of the house. He regularly went to an internet café withfriends after school. This group included seniors who had already graduated from Taman SiswaSenior High School and who lived in the area.

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

1Antonius Badar is Case Advocacy Coordinator of Lembaga Bantuan Hukum Masyarakat(LBH Masyarakat)

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

Aldo Returned the Marijuana to its Owner

In this case, Aldo was influenced by his friend Reza to keep marijuana. Reza is 20 years old anda former student at Aldo’s school. The two knew each other well from spending time together atthe internet café. As an alumnus, Reza had a great deal of power at school. One day, Rezaasked Aldo to temporarily keep a small plastic bag of marijuana for him. As Aldo lived near theTaman Siswa Senior High School, Reza would easily be able to find him. Aldo was unwilling totake the marijuana, but was persuaded by Reza who promised that he would take it back.

On 16 March 2013 Aldo attempted to return the marijuana to Reza. They made an appointmentto meet at 4pm in Menteng. Eager to not disappoint Reza (and to return the marijuana as soonas possible), Aldo arrived first. Reza arrived with his friend Saefruloh and went to talk to Aldo inprivate. They were unaware that three local residents were observing their movements. Afterreturning the marijuana to Reza, two guys suddenly grabbed Aldo and another tried to seizeReza. Reza threw the marijuana in a ditch and managed to escape. Aldo and Saefruloh weretaken to the police office but Saefruloh was released because of his lack of knowledge of theincident.

At the Matraman Police Office, Aldo was interrogated and arrested, as he was the only personwho knew about the drugs. Based on the results of the police laboratory examination, the packetcontained less than 10 grams of marijuana. He was charged with possession of the marijuana, tobe heard at the Central Jakarta District Court.

The Hearing Was Not Aimed to Acquit Aldo, But to Give Deterrence

As his lawyer, LBH Masyarakat worked to assist Aldo during the legal process in order to ensurethat the hearing was conducted fairly as mandated by the Law on Juvenile Justice. However,ensuring that the best interests of the child are prioritized is one of the biggest challenges inthese types of cases. There were two targets we wanted to achieve to fulfill Aldo’s best interestsin this case. Firstly, LBH Masyarakat asked for bail in order to avoid Aldo dropping out of school.Secondly, we argued for an appropriate and effective form of punishment that would not involvetime in prison.

Sometimes the ability to act in the best interests of children is hampered by the limited period ofinvestigation. Until a final decision is reached by the court, children and adults who havecommitted a criminal offence face a different legal process. For juveniles, the maximum period ofremand in police custody is twenty days and it can be extended by a maximum of ten days. Atthe prosecution level, it is a maximum of ten days, and can be extended by up to fifteen days. Atthe court hearing, they have up to fifteen days, which can be extended for a maximum of thirtydays.

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Another thing that might infringe the best interests of juvenile offenders is the large number ofcases handled by the police, prosecutor and judges. With the huge number of cases theymanage, they could forget to prioritize and expedite juvenile cases. What happens in practice isusually that juvenile cases are ignored and, as a result, their right to a speedy resolution of theirtrial is infringed.

LBH Masyarakat tried to get bail for Aldo so he could continue his schooling. However, it failedbecause of the limited period of detention. Article 45 Law No. 3/1997 about Juvenile Justicestates that: “Basically arrests can be made for the purpose of examination, but the detention ofchildren must also consider the interests of the child relating to his/her growth and development,including the physical, mental, and social interests of the child and society.” Thus, LBHMasyarakat believes that the legal process can run in parallel with Aldo’s schooling. The policerefused to grant bail because they argued that Aldo’s dossier of the case was already finishedand would be given to the prosecutor soon. If they granted bail, it would be a waste of timebecause he would be arrested again when his dossier was sent to the prosecutor. The samereason was given by the prosecutor until the hearing was held and because of that Aldoremained in detention and could not continue his study until the end of the legal process.However, LBH Masyarakat continued to work for Aldo’s best interests during the hearing and intrying to obtain the ideal court decision.

During the hearing, LBH Masyarakat focused on proving that Aldo’s involvement in this case wasa result of pressure exerted by his friends. LBH Masyarakat also requested that the judgeconsider the best interests of the child and not send Aldo to prison. Finally, LBH Masyarakatsucceeded in convincing the judge. The judge decided to return Aldo to his parents on thecondition that they report to the Central Jakarta Correctional Center once a month for a year.Basically, sanctions that can be imposed on children are no different than other criminal cases.However, the Law on Juvenile Justice provides additional possible sanctions such as thedeprivation of certain goods or payment of compensation; or an action returning the child to theirparents or to the state or social affairs ministry for education and job training. Another importantoutcome is that Aldo can continue his study because he shall not be imprisoned.

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A LETTER

F R O M

J E M B E R

To Bribe or Not to Bribe

Dhoho Ali Sastro1

Judicial corruption does not seem to pick and choose where it will occur. It can happen in bigcities like Jakarta or a small city like Jember in the province of East Java. People may find itdifficult to prove that judicial corruption exists, but one can feel that it is there.

Every time we advise our clients, we tell them not to bribe or get involved in any kind of judicialcorruption. But often they do not listen. While our clients are detained, they meet with otherdetainees who tell them stories that corruption can actually work. They hear that bribing judgesmay lessen the sentence or perhaps may result in acquittal. Though, of course, there are morestories that demonstrate otherwise. It is difficult for us to prevent them from engaging in bribery.Although we always inform them of the consequences of getting caught for bribery, our clientsare often laughed at by other detainees or prisoners if they choose not to bribe and go the legalway. But this time, we have managed to show that bribing fails.

On a recent visit to a prison in Jember I met four teenagers in one of the blocks for juveniles. Atelevision which was screening a film was turned off so we could have an undisturbedconversation. We all sat on the floor. These four teenagers had all been involved in the samecrime, although they had vastly different appearances. Robert, the self­confessed mastermind ofthe theft, was of average height like other junior high school students. Sporting tattoos on botharms and a hardened manner of speaking, it was difficult to believe that this was his first crime.

Roger, another suspect, had darker skin and a big scar between his right eye and nose,obliterating almost half of his right eyebrow. He claimed to have had the scar from birth, not fromany recent trouble.

1Dhoho Ali Sastro is Director of LBH Masyarakat Jember Office

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Ian was the smallest of the four. He was not even fifteen. Although he is in the second year ofjunior high he did not go to school at all last year. “I will not expel him because I have mypersonal debt to his father,” said the principal without further explaining what this might be.“Other teachers are against my decision,” he added. Ian looked skinny but his eyes were sharpand he spoke as if he was not scared of anything.

Thomas, the fourth teenager, looked different too. He was larger than the others, and movedmore slowly.

All of the youths admitted that they had committed theft on a hill near their houses. “That hill israther quiet and often used for couples to just hang out. We went up there and met these twopeople who were on a date. And we just asked them for money. Thomas was pointing the knifeat them,” said Ian smoothly. “It was Robert’s idea and the knife belongs to Roger,” he addedwithout me asking. I then asked him: “So what did you do?” “I was waiting on our motorbike. Itwas burnt by the people who caught us Sir,” Ian said.

Their act indeed caused mass outrage in the community. People were angry because theythought that the four teenagers were the ones who stole motorbikes the day before. “In the policestation we were cross­examined with the owner of that bike. He said it was not us who stole hisbike,” Ian said firmly.

“This is all my fault Sir. I was the one who asked them to get involved,” Robert said with agesture that he was willing to take all the responsibility. Our conversation that afternoon wentwell. They were all able to answer my questions smoothly as if they had pre­prepared theiranswers. There was no fear or regret on their faces.

“How about the trial. Are you guys ready for it?” I asked them. “Well, I guess we just have to faceit, right Sir?” Ian replied.

“So you guys are not afraid of the punishment?” “No Sir.”

The bribery

The hearing was held a few weeks later and the teenagers attended court with their families.Since we monitored their cases, we always advised them not to bribe the police, prosecutors orjudges. We informed their families of this as well. We warned them that if they get caught bribingofficials within the law apparatus, they are likely to receive a harsher sentence.

Despite this, one of the fathers calmly told us during the hearing, “I have given two million rupiahto the guy from prosecutor’s office. That’s for, you know, just thanking him for his ‘support’ to myson in prison. And also it’s for the transportation fee. I think that’s alright.” We were shocked. Wewere terribly surprised. This shows that bribery is incredibly commonplace in society and isbelieved to result in lighter sentences. “You don’t need to take care of them anymore Sir. I thinkwe’re going to be fine,” he added.

At the next hearing, nothing had changed. The young people did not show any fear when facingthe trial. They did not seem to care about anything as if they knew that they were guaranteed toget a lenient sentence. They did not even spend time preparing a defense note. “You need tomake your defense.

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It will be helpful for you to show the judge why you committed the crime and that you regret it,”one of the volunteers at the LBH Masyarakat Jember Office explained. However, after theprosecutor delivered the demand letter, the teenagers did not submit anything to the judge.

Even though they had not prepared anything, the judge adjourned the hearing for the followingweek so they could submit their defense note. This was odd because usually after the demandletter has been read by the prosecutor, the judge will immediately question the defendant andconsider their statement as a defense note rather than adjourning the hearing to hear thedefendant’s defense note. In this case, the judge adjourned the hearing for one week. But, eventhough they were given that opportunity, the teenagers once again failed to prepare a statement.They only said before the judges that they asked for lenient sentences and that they feltremorse. After that the hearing was adjourned for the judge to deliver the verdict. This is anotherodd practice.

When the judgment was delivered, the result was surprising. The judge sentenced them tosentences equivalent to those demanded by the prosecutor. The only difference was thereduction of fifteen days for the two teenagers who were still at school. The parents were angryand disappointed. It turned out that after the demand letter was read, there was an attempt to‘buy’ the judgment but they could not reach an agreement. “Initially, it was two million rupiah perperson, but then they lowered the price to one million per person. But we don’t have any moneyleft,” said one of the parents.

But now the judgment has been made, and it is final and binding as the families did not attemptto appeal. What this case shows us is that the trial has lost its meaning. It is no longer a meansfor people to acknowledge their fault and to take responsibility for it by undertaking the judgment.Instead, it has become a place where people trade their freedom. Because people are soconvinced that they can buy their freedom, they do not take the opportunity to seriously expressremorse. They hope that money can help them avoid the consequences of committing a crime.But the truth speaks differently, and that remorse comes later. “I wish we hadn’t paid them fromthe beginning, I am sure the situation would have ended differently,” one of the parents closedour conversation with that day.

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