04 August 2009

Prita Mulyasari -- Judicial Review of the Banten High Court...

I like OC Kaligis. He is a passionate about lawyering and he has contributed lots to Indonesia's ever-expanding mooting community, which is something I am passionate about as well. However, the desire to seek judicial review of the Banten High Court decision that orders the Tangerang District Court to retry the Prita Mulyasari defamation case is a case of barking up the wrong tree.

To be clear, I do not think that this case should have been heard in the first place, civil or criminal, however now that it has, it is an excellent test case and the team from OC Kaligis' law offices would be better to focus on the manner in which they could conceivably contribute to setting an Indonesian legal precedent. Yes, Indonesia is a civil law country and precedents do not play a big part, I have heard it all before. In a civil law country like Indonesia that is trying to forge a strong reliance on the rule of law means that a precedent like the one that is possible in this case would be a significant achievement, particularly for legal and legislation certainty.

The OC Kaligis team in pursuit of "justice" is going to lodge a brief at the Supreme Court to have the Banten High Court's decision judicially reviewed. A very basic and general analysis of Indonesian law would require that the Banten High Court decision include an error in application of the prevailing laws and regulations or there is new evidence that would render the verdict unsustainable if the court had had access to that evidence at the time the decision was made.

The decision of the Banten High Court appears to be on solid legal grounds. It does not appear to have erred in the application of prevailing laws and regulations with regards to the decision handed-down. Without having read the brief, it is hard to see what new evidence might have come to hand that would render the verdict unsustainable. Although, one of the lawyers from the Kaligis team suggested that he hoped the Banten High Court decision was not influenced by factors other than the prevailing facts in the case. So, maybe the infamous court mafia weaved its considerable magic?

Nevertheless, OC Kaligis is doing his job by seeking a judicial review. This is in the sense that a lawyer must explore every possible avenue that is available to their client in the pursuit of not only justice, but to prove their client's innocence. In any event, the Supreme Court has a history of interesting decisions that overturn lower court decisions. So, an appeal to the Supreme Court could be a winner for Kaligis and his team if the are holding the "right" ticket in the lottery.

I have always argued that the best possible outcome for Prita would be to prove that the defamation did not occur. Or, if it did that there are defenses available, specifically that what was contained into the letter to friends that found its way onto several mailing lists was factually correct. Simply, you cannot defame someone or an institution with the truth. The truth is as it is, truth!

You know there will be more on this as it comes to hand.


lawbug said...

You really are plugging away at this one - good on you.

Just a few technical points that might be important"

the old "doctrine of precedent" chestnut came up - they do have pertimbangan yurisprudensi here right - whatever that is -Im working on it actually.

And you wrote

"but to prove their client's innocence" - this gives the impression that the presumption of innocence does not apply here. But Im sure readers know this is not true??

I look forward to seeing this one out.

GJ said...

Is there no law of commonsense?


Rob Baiton said...


I am all into technical points and perhaps out of them as well.

The doctrine of precedent is not really a chestnut. Yes, there is pertimbangan yurisprudensi. Generally, yurisprudensi in the Indonesian context are final and binding decisions that have been affirmed by the Supreme Court. It is worth noting that jurisprudence in a common law setting is a much broader substantive subject matter.

Yurisprudensi tetap has many more similarities with the idea of common law precedent that does yurisprudensi biasa.

My arguments have always been that civil law or not, Indonesia has a history of judicial decision making that can and sometimes does form the basis of future decision making in similar cases.

Mate, if you think a defense lawyers job is just to sit back and let the prosecutors prove guilt then I don't know what I can tell you.

The reality for defense lawyers is that they generally will have a strategy to prove innocence. This has absolutely nothing to do with a presumption of innocence. Even if you are presumed innocent this does not mean that you do not put on a defense.

This is even the case where you do not call your own client because he or she is likely to do themselves more harm than good. Nevertheless, you would still call other witnesses in an attempt to prove that your client is not guilty (and therefore innocent) of the crimes alleged.

Your impression is that I am saying the presumption of innocence does not apply. This is not what I am saying at all. You are trying to put words into my writing that are not there.

Have you practiced law - either side of the equation; prosecution or defense?

Have you watched any law shows where the presumption of innocence is assumed where the defense lawyers then put on a proactive defense in order to prove that their client is innocent? Have you stepped inside a courtroom and watched the prosecution and defense go at it hammer and tong?

If I recall, you said you are not a lawyer and have never practiced. Although, with a fascination like yours with the law, I wonder. I always feel like I am back in law school and in an exam.

I stand by my claim that part of a defense lawyers job is to prove their client's innocence. Once the prosecution has presented their case, if it is strong, then there is a need to refute the prosecution case. Once again, this is the same as proving your client's innocence.

But, if you think what I have said is misleading or you think I do not understand, then so be it. I am sure that all of the people I have been involved with are happy that I did not sit back and kick my feet up and rely on a presumption of innocence to get them off the charges that they were facing.

I don't mind one way or the other on seeing this one out. :D

Rob Baiton said...


Common sense is not a law :D

That is why some people say that the law is an ass ;)

lawbug said...

I am not a lawyer - you can see me like a doctor who does not practice and never did, or a chemistry graduate who teaches elementary chemistry, or just someone who has informally studied the law. I am one of a group of people interested in the law - possibly a faily sceptical group.

My interests are mainly technical rather than judging the law or offering opinons about the substance and procedure of law. I feel I cannot do this as I do not practice law - in this regard I am no different to the doctor or the chemistry teacher - or am I? (a discussion for another day?). Perhaps that's why you feel that I am testing you: Im just trying to get my definitions straight, not countering your opinions or offering suggestions etc. I am trying to learn the discipline from a practitioner.


People often compare the civil and common law countries' legal systems and their respective systems of trial. Im sure they oversimplify in doing this, and Im sure youve pointed this out. On the matter of the existence of a DoP in Indonesia Ill defer to your greater knowledge; but on the idea of PI I am not so sure we have common ground. I believe that the adversary system requires a strong notion of PI, and standard and burden of proof, and a right to silence. These work in ways that I know you are only to familiar. But I see a central difference between us on this idea of burden to prove guilt and innocence (in your case) - jury or no jury. Two things stand out for me - silence must not be construed as an admission of guilt; and the defence's job not to prove anything but merely to create reasonable doubt in the other side's case. Once done, victory is guaranteed; whether yielding a fair of unfair result it is of no consequence - such is the rightly shewed system of common law trial. I do not see any element of "proof" in the stance of the defence -except maybe in the case of proving the defence of insanity. Naive I may be.

Now I realise all of this is Lsw 101, but I would hope that readers might be interested in the topics at hand, especially in view of your comments on the Prita case.

I would also like to ask you if you know the link to a very long comprehenive english-indonesian glossary of legal tems - I found it the other day and lost the address - something like indolaw.xxx?


Rob Baiton said...


I would have figured the best way to create reasonable doubt was to prove innocence. For example, the innocence project. In my mind the innocence project is not about just creating reasonable doubt, but in fact using DNA evidence to exclude the convicted person.

I am not sure that reasonable doubt always guarantees victory. If it did then there would be no wrongly convicted persons sitting in jail.

Silence is not to be used to infer guilt. Look, in a common law system this is true. The judge, if they want to ensure that this is not a grounds for appeal will instruct the jury to this fact. This is also why some defendants will opt for a judge alone trial. Juries are human and some human beings will make those inferences even if they are instructed not to.

Yes, the prosecution must prove its case. It has the burden of proof to do so. As a defense lawyer you can sit back and hope that the prosecutors cannot make that case. However, this would be a risky strategy.

Back to reasonable doubt. How do you think defense lawyers create reasonable doubt? They do it by punching holes in the prosecutors case.

These holes are generally refuting the guilt of the defendant as alleged by the prosecutor. This is best done by arguing, for example, that your client is innocent (they were not there at the time or they do not match the physical description of the perpetrator).

I guess my lack of understanding in your argument is that you argue the defense's only job is to create reasonable doubt. To a degree this is true as it relates to the creation of reasonable doubt. It is not the only job of the defense though. And, you do not offer up how a defense lawyer is to create reasonable doubt.

Does the defense lawyer just stand up and say, "ladies and gentlemen of the jury, my client did not do it! He is not going to testify in his own defense because he did not do it! Thank you." Is that reasonable doubt.

If you are interested in the technical side of the adversary system then it is critical that there is some understanding of how advocacy is practiced, taught, learned, and then practiced.

I am not suggesting that you do not have these skills. What I am saying is that the statement that I noted above regarding the defense lawyer's job of creating reasonable doubt is over-simplistic.

There is probably more common ground than you care to acknowledge. But, whatever.

In light of the Prita case. I am not sure what you mean. The civil trial would indicate that the courts are convinced that Prita has defamed Omni International Hospital. Hence, the order for IDR 312 million in compensation.

What I said about the Prita case is that the best defense to a defamation action is proving that what is said is not defamation. And, even if it is defamation then it does not breach the law because it is true or factual. Or, perhaps what was said was in the public interest; people have a right to know that the service at Omni International Hospital leaves a lot to be desired.

I think both of these require the defense to be proactive in proving Prita's innocence. However, the second part of this is clearly proving Prita's innocence of the charges as laid out by the prosecutors.

In Prita's case how are you suggesting that her legal team create reasonable doubt that it is not defamation?

Yes, I have a copy of the glossary. I helped write it and translate it.

lawbug said...

Thanks again. early morning - off to work - could you send the link please if you dont mind. I could check history but could take a while. This glossary is not the one I found at Indolaw.com btw.

Re Prita, the matter was more related to DoP (not PI etc) - which I leave to you. Would a precedent in the common law be set and would it be binding across all lower courts in this country.

Re PI thing - yes i agree with you - its how it is best aid or taught that I was trying to arrive at - sometimes in teacheing it pays to exaggerate to make a point - especially the skewed nature of a criminal trial - the defence has a lot of leg-ups. No?

lawgrrr said...

"And if the constitutional court says the law is constitutional, I'm ready to be whipped not 40 but 40,000 times," said Hussein, who also works for the left-wing Al-Sahafa newspaper.

would she so readily take a risk like this in Indonesia? Rhetoric aja.

Rob Baiton said...


Go to www.hukumonline.com or www.hukumpedia.com. I think you will find it at both. To be honest I have the glossary installed on my hard drive and I have it on CD-ROM.

So, I cannot recall using the link for quite some time.


I am not really following the case. She has been found guilty for wearing pants or something, right?

Under Jimly's stewardship the MK was pretty consistent, this should not be construed as meaning consistently right, just consistent :D

Now, I am not so sure regarding the consistency.

generalpervaizmusharraf said...
