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.

1. EDITOR'S NOTE LBH Masyarakat presents you
the April ­ May 2013 edition.
HUMAN RIGHTS, LAW, AND POLITICS
Examing Judicial Review in the
Indonesian Criminal Justice
System
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
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 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
AStory of
Aldo
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.
ALetter
From Jember
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.
Volume April - May 2013
http://www.lbhmasyarakat.org

2. MANAGING EDITOR:
Ricky Gunawan
EDITORIAL BOARD:
Andri G. Wibisana, Dhoho Ali Sastro,
Ajeng Larasati, Antonius Badar, M. Afif
Abdul Qoyim, Riki Efendi.
FINANCE AND CIRCULATION:
Ahmad Zaki, Herlina
REVIEWER:
Miki Salman
DESIGN AND LAYOUT:
Vimala Putta
ADDRESS:
Tebet Timur Dalam III, No. 54A
Jakarta 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 reproduced
without prior permission of the LBH Masyarakat.
This publication is supported by the Levi Strauss Foundation. The content of this publication
does 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 guest
editorial piece or article, please contact us at contact@lbhmasyarakat.org or caveat@
lbhmasyarakat.org
LBH Masyarakat welcomes any financial contribution for the development of CAVEAT.
Name : Lembaga Bantuan Hukum Masyarakat
Bank : Bank Mandiri
Branch : Tebet Timur, Jakarta, Indonesia
No.Acc. : 1 24–000–503–6620
SwiftCode : BMRIIDJA
Editor's Note ..................................................... 3
HUMAN RIGHTS, LAW, AND POLITICS........... 4
Examining Judicial Review in the Indonesian
Criminal Justice System
HUMAN RIGHTS, HIV, AND DRUG POLICY..... 9
Right to Health Advocacy Training, Asia Catalyst
2013
FROM OUR ARCHIVE ..................................... 11
A Story of Aldo
A LETTER FROM JEMBER ............................ 14
To Bribe or Not To Bribe
Phone :
Fax :
E­mail :
Website:
+62 21 830 54 50
+62 21 8370 99 94
contact@lbhmasyarakat.org
caveat@lbhmasyarakat.org
www.lbhmasyarakat.org
CAVEAT | April - May 2013 2

3. In this edition, we present you – as usual – four columns ofarticles. 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 HealthAdvocacy Training organized by the Asia Catalyst in
May 2013. Meanwhile in the From OurArchive column, our casework coordinatorAntonius 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 ofthe 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

4. HUMAN RIGHTS, LAW AND POLITICS
Examining Judicial Review in
the Indonesian Criminal
Justice System
Muhammad Afif Abdul Qoyim1
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. For six years they were incarcerated in Cipinang Prison
until one day another convict, Gunel, also incarcerated in Cipinang Prison, came forward and
confessed that it was he who murdered the husband­and­wife couple. With regard to this
confession, the Bekasi District Court sentenced Gunel to 12 years of prison. However, the fact
that there was bow new evidence, that is, the discovery of the actual perpetrator, did not
automatically meant that Sengkon and Karta could walk free immediately. The situation created a
legal vacuum as to the requirements and procedures for judicial review (peninjauan kembali) as
a mechanism to correct prior court decisions.
The situation was immediately responded by the then Head of the Supreme Court, Prof. Oemar
Seno Adji, who also acted as the Head of the Panel of Judges along with Busthanul Arifin, and
Purwosunu, as members of the panel in the judicial review of the case of Sengon and Karta. The
outcome of the judicial review is reflected in the Supreme Court decision number
66/PK/KR/1980, of 31 January 1981, which, essentially, ruled that Sengkon and Karta were
proven not guilty.
The silver lining from the Sengkon and Karta case was a lesson that the early reformed
Indonesian criminal justice system giving a mechanism for judicial review in Law Number 8 of
1981 (Criminal Procedural Code). Although, initially the procedure took into consideration the
Supreme Court Regulation Number 1 of 1980 regarding Judicial Review of Decisions with
Permanent 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 to
certain subjects, namely those who are entitled to applying for PK; the convicts or their heirs as
regulated in Article 263 (1) of KUHAP.
Background
1Muhammad Afif Abdul Qoyim is Advocacy Staff at Lembaga Bantuan Hukum Masyarakat
(LBH Masyarakat).
CAVEAT | April - May 2013 4

5. The object of a judicial review is legal decision with permanent legal force as stipulated in Article
263 (1) of KUHAP. Whereas the bases for PK are limited to three according to Article 263 (2) of
KUHAP, namely:
a. “if there is a new situation that would lead to a strong inference, that if such situation
was known at the time of the proceedings, the outcome would be an acquittal of all legal
charges or [that] prosecutor’s charges would not be acceptable or with respect to the
case 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 declare
proven, 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 be
corrected. This concept is consistent with Taufik Rahayu Syam who proposed several
considerations to reopen the door for judicial review, including:
1. “Even though a case has been decided at the first, appellate and cassation levels that
has permanent legal force, there are concerns that there may be errors in the
examinations because human nature although he is a judge is not free from error and
negligence and shortcomings;
2. It may be that when a case is decided, apparently there are elements that are
unhealthy such as lies, and deceptions so as to lead to injustice to one of the parties in
the 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 are
harmed by filing a PK application in the case that already has a permanent legal force.”
Analysis: Problems in Judicial Review Practice
Limitation of Judicial Review
Article 268 (3) of KUHAP regarding the procedural code about judicial review stipulates that PK
can only be filed once. This provision basically limits PK filing to only once. Filing for PK more
than 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 case
number: 167 PK/Pid.Sus/2009, as well as the capital cases of Fabianus Tibo and company. The
existence of such decisions provide more legitimacy regarding limitation of PK as reflected in
Article 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 been
harmed [have] filed for constitutional review of PK limitation that is limited to only once with the
Constitutional Court. One such effort was by the former Head of the Corruption Eradication
Commission, Antasari Azhar, in the case number: 34/PUU­XI/2013. In the correction to his
second submission dated 25 April 2013, Antasari conveyed that “we feel that if PK can only be
done once, which thus far had been said for the sake oflegal 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 oflaw [goes] with respect to a case”.
CAVEAT | April - May 2013 5

6. With respect to that request, there are pros and cons from several legal experts. Those who
support limiting PK are basically of the opinion that applying for PK more than once does not
provide the guarantee for legal certainty as mandated by Article 28 D (1) of the 1945 Constitution
of the Republic of Indonesia. Additionally, repeated application of PK will injure the principle of a
simple, 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 once
goes against the principle of justice, as mandated in Article 24 (1) of the 1945 Constitution of the
Republic of Indonesia, which provides that judicial authority is independent in organizing the
judiciary to uphold the law and justice. On the other hand, the regulation [that limits] PK to only
once will only obstruct the right to obtain justice for convicts sentenced to death, assuming that
new 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 adjudicating
second 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 Court
accepted the second PK application by Grandma Saodah. The first PK had been filed by the
General Prosecutor beforehand. The reasons used by Grandma Saodah in filing her second PK
were 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 is
because 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 the
Prosecutor 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 though
the argument used was for the public interest as practiced in the case of Muktar
Pakpahan. Because basically this case is purely a civil case (private) and has
nothing to do with public interest.
With the above reason, the Supreme Court in its consideration implicitly referred to the action of
the General Prosecutor in filing for PK that was seen as closing the door to justice for the
convict/her heirs to file for PK. Thus, the Supreme Court needed to consider the PK filed by the
convict. Furthermore, the bases proposed by Grandma Saodah have been granted by the
Supreme Court and mentioned that there were various decisions that were contradictory in one
case as regulated in Article 263 (2) and the Supreme Court Circular Number 10 of 2009 point 2
which in essence provides that [if] in one case object there are two or more contradictory
decisions then PK can be filed. This consideration basically is related to the existence of the civil
decision in the case number: 803 PK/Pdt/2008 as the decision that annulled the decision
number: 523/Pdt/PT.BDG Jo. 1434 K/Pdt/2005. The last two decisions served as the basis for
the General Prosecutor to file PK number: 41 PK/Pid/2009. Thus, with the PK decision in the civil
case number: 803 PK/Pdt/2008 that was made as the basis for PK by Grandma Saodah, the
Supreme Court in its verdict, annulled PK Decision number: 41 PK/Pid/2009 Jo. Decision
number: 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 be
justified with the condition that the basis for filing the judicial review is that there are contradictory
decisions in one case object as provided in Article 263 (2) letter (b) KUHAP Jo. Point 2 SC
Circular Number 10 of 2009.
CAVEAT | April - May 2013 6

7. In addition to the case of Grandma Saodah there had also been cases where PK was filed by
parties 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 of
evidence, namely, the ship that was previously used by other parties to commit the crime. In that
case it can be concluded that the owner of the evidence (the ship) could file for PK as he was
involved 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 PK
applicant 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 file
for PK for the convict/heirs is because the party who first applied for PK is the owner of the
evidence who legally does not have a legal standing as PK applicant subject. The fact that there
were efforts by the evidence owner applying for PK clearly takes hostage the convict’s/heirs’ right
to justice. The legal event resulted from the regulation of PK in KUHAP that only limits PK to
once as provided in Article 268 (3) of KUHAP.
The variety of cases above has basically gone against rules regarding limitation of PK that can
only be done once. Even though it still considers the basis and particular situations of why PK is
filed more than once.
PK application by General Prosecutor
The Supreme Court in 1996 made a spectacular legal breakthrough in the criminal justice
system. The Supreme Court accepted a PK application filed by General Prosecutor in the case
of Muktar Makpahan, case number: 55 PK/Pid/1996, of 25 October 1996. In the legal standing of
the PK filed by the GP, the Supreme Court did accept. Which means that formally the PK
application had met the requirements as provided in the KUHAP. Whereas, as specified in Article
263 (1) of KUHAP, the party that is entitled to file PK application is limited to certain legal
subjects, namely the convicts or his/her heirs. Explicitly, the provision does not say the GP as a
party entitled to file PK application. However, the provisions regarding parties entitled to file PK
were again set aside by the Supreme Court.
However, in the case of H. Mulyar Bin Samsi, case number: 84 PK/Pid/2006, the PK application
filed by GP, the Supreme Court formally rejected the PK application. Because KUHAP, as
specified in Article 263 (1) affirmatively and in a limited fashion only specified that the convict or
the heirs are parties entitled to apply for PK. With regard to the role of GP in applying for PK, the
Supreme 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, the
Supreme Court accepted the legal standing of GP as a party entitled to apply for PK, while in the
case of H. Mulyar Bin Samsi, the Supreme Court rejected the legal standing of GP as the party
applying for PK. This fact indicates that the PK practice that exists today often invites and
contains problem.
On the other hand, relying on the case of Muktar Pakpahan regarding the acceptance of legal
standing of GP as a party to file for PK, GP often referred such case when they submit a PK
application. This can be seen in the case of Soetiyawati alias Ahua Binti Kartaningsih in case
number: 15 PK/Pid/2006. In that case, again, the Supreme Court formally accepted the legal
standing of GP in filing PK.
CAVEAT | April - May 2013 7

8. 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. The
presence of this opportunity is a logical consequence because the convict/heirs pragmatically
would not possibly file PK with respect to a decision that benefits them. With respect to this
situation, one can then imply that the provision of Article 263 (3) provides an opportunity for GP
to file PK.
Conclusion and Recommendation
Conclusion
Provisions regarding filing extraordinary legal efforts, namely, judicial review are clearly and
explicitly stated in the Criminal Procedure Code (KUHAP). Along the way, the provisions
regarding PK were not free from problems and debates. At least the polemics that developed
pertained to the quality of the legal norms and application of the legal norms themselves. The
problems become more evident in PK application that is only limited to once as stipulated in
Article 268 (3) of KUHAP. This one­time limit to PK application appears to be a problematic legal
issue. This context can be seen from the pros and contras that appeared among legal experts
with regards to the doctrine of legal certainty and the vision of justice. Those who support the
limitation to PK argue that giving more than one opportunity to apply for PK will not ensure the
realization of legal certainty as reflected in Article 28 D (1) of the 1945 Constitution. Whereas
those who reject the limitation of PK application argue that the justice process shall be
conducted not only to gain legal certainty but to achieve justice.
Recommendation
Even though the provisions regarding limitation of PK in practice are often not followed, it does
not mean that the filing of PK can be done repeatedly. This is considering the principle of legal
certainty 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 law
enforcement. This context is aimed for the Supreme Court as the institution that guards justice
that shall maintain harmony between legal certainty and the goal of justice. Not applying justice
certainly would mar the enforcement of law itself at the same time stain human rights that apply
universally.
CAVEAT | April - May 2013 8

9. 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 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. The
participants 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 with
representatives from relevant government institutions. They analyzed some problems and used
strategic thinking skills to seek solutions. Each participant shared information about their
experience in advocacy and the successes and constraints they had encountered in their
country. A common problem experienced in most of the communities was the denial of their rights
as citizens. The participants explained that community members are often stigmatized and
discriminated by the government. For example, in Nepal and India stigma and discrimination are
still experienced by people living with HIV when accessing health services.
An overview of human rights and UN human rights mechanisms was discussed on the second
day of training. In this session, the participants discussed human rights issues that were most
relevant to their communities, including useful UN human rights mechanisms and how they could
be used for advocacy purposes. This session was followed by a discussion about how to learn
and apply the strengths, weaknesses, opportunities and threats of the advocacy plan and what
kind of benefits this might have for the organization.
After this, the participants were given materials on the Global Fund. The participants learnt about
the issues surrounding how the Global Fund works and its new funding initiatives. It is hoped that
the 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 advocacy
framework and define advocacy goals in a more specific way. It was followed by a session on
how to mobilize communities, examined in the context of participants’ real­life experiences with
community advocacy for marginalized and criminalized groups. The participants exchanged
stories 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 and
harm 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 in
Thailand through advocacy. Another example was the work of the Asia Pacific Network of People
Living with HIV (APN +), which was established in 1994 in Kuala Lumpur with the secretariat
office in Bangkok. APN+ aims to create a better world for people who are HIV positive, by trying
to reduce stigma and discrimination and improve access to treatment. Their activities include
advocacy and community mobilization, intellectual property rights and access to more affordable
medicines.
CAVEAT | April - May 2013 9

10. Following this, the participants learned more about the opportunities that exist in advocacy
support and technical agencies or UN commissions (e.g. UNAIDS). This day concluded with a
site visit to an NGO that fights for the rights of sex workers, namely the Asia Pacific Network of
Sex Workers (APNSW) in Bangkok. This visit aimed to teach participants about the work done by
the organization, which focuses on using art in advocacy and empowering sex workers through
the handicrafts they make.
On the fourth day of training, the participants discussed how to identify and access targets and
allies in connection with the advocacy plan that they would make. The participants then had the
opportunity 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 develop
the advocacy plans that had been made. The participants then had the opportunity to discuss
how 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 be
implemented. They had to consider the possibility of a regional or national level of cooperation
and how to communicate between future participants.
The health and rights advocacy training concluded with a summary of the discussions and an
evaluation of the training to understand what had been done well, what had been achieved and
which areas needed improvements.
The participants then met again to discuss their progress on their advocacy plans in November
2013.
CAVEAT | April - May 2013 10

11. FROM OUR ARCHIVE
AStory ofAldo
Antonius Badar1
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. LBH Masyarakat represented Aldo throughout the trial process because of his age
and the fact that he comes from a poor family. In addition, the allegation seemed unclear
because Aldo was tricked in a situation that made him have to face the legal process. The
prosecutor demanded two years imprisonment for Aldo. The judges found Aldo to be guilty but
returned him to his parents, requiring them to report to the Central Jakarta Correctional Center
once a month for a year.
Aldo Was Subject to Significant Peer Pressure
It is common knowledge that teenagers frequently face peer pressure during adolescence. It
appears that the influence of peers – and the desire to be socially accepted – far exceeds that of
parents, teachers or religion. This influence can, of course, be positive or negative. According to
the American Academy of Child and Adolescent Psychiatry, the majority of teens with substance
abuse problems began using drugs or alcohol as a result of peer pressure. It is clear that peer
pressure played a significant role in Aldo’s case.
Aldo was regarded in his neighborhood and school as a polite, well­behaved person. He was not
a trouble­causer, so his arrest came as a surprise to the community. Aldo’s parents divorced
when he was in elementary school and, due to the lack of harmonization in his family, Aldo
tended to spend much of his time out of the house. He regularly went to an internet café with
friends after school. This group included seniors who had already graduated from Taman Siswa
Senior 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 senior
students. This made him particularly vulnerable to pressure exerted by the older students to
engage in risky behaviour. This issue of peer pressure is in line with the research carried out by
the Central Jakarta Correctional Center as part of their recommendation to the judges. They
were of the view that Aldo’s parents were able to take care of him well but the older students
were a negative influence, encouraging Aldo to participate in illegal activities. The Correctional
Center also said that Aldo is an emotionally unstable kid – which means, he could be affected by
anything.
1Antonius Badar is Case Advocacy Coordinator of Lembaga Bantuan Hukum Masyarakat
(LBH Masyarakat)
CAVEAT | April - May 2013 11

12. As a junior at his school, Aldo was keen to earn the respect and friendship of the more senior
students. This made him particularly vulnerable to pressure exerted by the older students to
engage in risky behaviour. This issue of peer pressure is in line with the research carried out by
the Central Jakarta Correctional Center as part of their recommendation to the judges. They
were of the view that Aldo’s parents were able to take care of him well but the older students
were a negative influence, encouraging Aldo to participate in illegal activities. The Correctional
Center also said that Aldo is an emotionally unstable kid – which means, he could be affected by
anything.
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 and
a former student at Aldo’s school. The two knew each other well from spending time together at
the internet café. As an alumnus, Reza had a great deal of power at school. One day, Reza
asked Aldo to temporarily keep a small plastic bag of marijuana for him. As Aldo lived near the
Taman Siswa Senior High School, Reza would easily be able to find him. Aldo was unwilling to
take 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 appointment
to meet at 4pm in Menteng. Eager to not disappoint Reza (and to return the marijuana as soon
as possible), Aldo arrived first. Reza arrived with his friend Saefruloh and went to talk to Aldo in
private. They were unaware that three local residents were observing their movements. After
returning the marijuana to Reza, two guys suddenly grabbed Aldo and another tried to seize
Reza. Reza threw the marijuana in a ditch and managed to escape. Aldo and Saefruloh were
taken to the police office but Saefruloh was released because of his lack of knowledge of the
incident.
At the Matraman Police Office, Aldo was interrogated and arrested, as he was the only person
who knew about the drugs. Based on the results of the police laboratory examination, the packet
contained less than 10 grams of marijuana. He was charged with possession of the marijuana, to
be 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 ensure
that 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 in
these types of cases. There were two targets we wanted to achieve to fulfill Aldo’s best interests
in 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 involve
time in prison.
Sometimes the ability to act in the best interests of children is hampered by the limited period of
investigation. Until a final decision is reached by the court, children and adults who have
committed a criminal offence face a different legal process. For juveniles, the maximum period of
remand in police custody is twenty days and it can be extended by a maximum of ten days. At
the prosecution level, it is a maximum of ten days, and can be extended by up to fifteen days. At
the court hearing, they have up to fifteen days, which can be extended for a maximum of thirty
days.
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13. Another thing that might infringe the best interests of juvenile offenders is the large number of
cases handled by the police, prosecutor and judges. With the huge number of cases they
manage, they could forget to prioritize and expedite juvenile cases. What happens in practice is
usually that juvenile cases are ignored and, as a result, their right to a speedy resolution of their
trial is infringed.
LBH Masyarakat tried to get bail for Aldo so he could continue his schooling. However, it failed
because of the limited period of detention. Article 45 Law No. 3/1997 about Juvenile Justice
states that: “Basically arrests can be made for the purpose of examination, but the detention of
children 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, LBH
Masyarakat believes that the legal process can run in parallel with Aldo’s schooling. The police
refused to grant bail because they argued that Aldo’s dossier of the case was already finished
and would be given to the prosecutor soon. If they granted bail, it would be a waste of time
because he would be arrested again when his dossier was sent to the prosecutor. The same
reason was given by the prosecutor until the hearing was held and because of that Aldo
remained 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 in
trying to obtain the ideal court decision.
During the hearing, LBH Masyarakat focused on proving that Aldo’s involvement in this case was
a result of pressure exerted by his friends. LBH Masyarakat also requested that the judge
consider the best interests of the child and not send Aldo to prison. Finally, LBH Masyarakat
succeeded in convincing the judge. The judge decided to return Aldo to his parents on the
condition 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 the
deprivation of certain goods or payment of compensation; or an action returning the child to their
parents or to the state or social affairs ministry for education and job training. Another important
outcome is that Aldo can continue his study because he shall not be imprisoned.
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14. 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 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.
Every time we advise our clients, we tell them not to bribe or get involved in any kind of judicial
corruption. But often they do not listen. While our clients are detained, they meet with other
detainees who tell them stories that corruption can actually work. They hear that bribing judges
may lessen the sentence or perhaps may result in acquittal. Though, of course, there are more
stories 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 clients
are often laughed at by other detainees or prisoners if they choose not to bribe and go the legal
way. 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. A
television which was screening a film was turned off so we could have an undisturbed
conversation. We all sat on the floor. These four teenagers had all been involved in the same
crime, although they had vastly different appearances. Robert, the self­confessed mastermind of
the theft, was of average height like other junior high school students. Sporting tattoos on both
arms 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 from
any recent trouble.
1Dhoho Ali Sastro is Director of LBH Masyarakat Jember Office
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15. Ian was the smallest of the four. He was not even fifteen. Although he is in the second year of
junior high he did not go to school at all last year. “I will not expel him because I have my
personal 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 sharp
and he spoke as if he was not scared of anything.
Thomas, the fourth teenager, looked different too. He was larger than the others, and moved
more slowly.
All of the youths admitted that they had committed theft on a hill near their houses. “That hill is
rather quiet and often used for couples to just hang out. We went up there and met these two
people who were on a date. And we just asked them for money. Thomas was pointing the knife
at them,” said Ian smoothly. “It was Robert’s idea and the knife belongs to Roger,” he added
without me asking. I then asked him: “So what did you do?” “I was waiting on our motorbike. It
was burnt by the people who caught us Sir,” Ian said.
Their act indeed caused mass outrage in the community. People were angry because they
thought that the four teenagers were the ones who stole motorbikes the day before. “In the police
station we were cross­examined with the owner of that bike. He said it was not us who stole his
bike,” Ian said firmly.
“This is all my fault Sir. I was the one who asked them to get involved,” Robert said with a
gesture that he was willing to take all the responsibility. Our conversation that afternoon went
well. They were all able to answer my questions smoothly as if they had pre­prepared their
answers. 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 face
it, 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 or
judges. We informed their families of this as well. We warned them that if they get caught bribing
officials 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 rupiah
to the guy from prosecutor’s office. That’s for, you know, just thanking him for his ‘support’ to my
son in prison. And also it’s for the transportation fee. I think that’s alright.” We were shocked. We
were terribly surprised. This shows that bribery is incredibly commonplace in society and is
believed to result in lighter sentences. “You don’t need to take care of them anymore Sir. I think
we’re going to be fine,” he added.
At the next hearing, nothing had changed. The young people did not show any fear when facing
the trial. They did not seem to care about anything as if they knew that they were guaranteed to
get a lenient sentence. They did not even spend time preparing a defense note. “You need to
make your defense.
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16. 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 the
prosecutor 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 following
week so they could submit their defense note. This was odd because usually after the demand
letter has been read by the prosecutor, the judge will immediately question the defendant and
consider their statement as a defense note rather than adjourning the hearing to hear the
defendant’s defense note. In this case, the judge adjourned the hearing for one week. But, even
though 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 felt
remorse. After that the hearing was adjourned for the judge to deliver the verdict. This is another
odd practice.
When the judgment was delivered, the result was surprising. The judge sentenced them to
sentences equivalent to those demanded by the prosecutor. The only difference was the
reduction of fifteen days for the two teenagers who were still at school. The parents were angry
and 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 per
person, but then they lowered the price to one million per person. But we don’t have any money
left,” said one of the parents.
But now the judgment has been made, and it is final and binding as the families did not attempt
to appeal. What this case shows us is that the trial has lost its meaning. It is no longer a means
for 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 so
convinced that they can buy their freedom, they do not take the opportunity to seriously express
remorse. 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 from
the beginning, I am sure the situation would have ended differently,” one of the parents closed
our conversation with that day.
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