Uluwatu Bali Blog

I remember way back in the Suharto era browsing through a KPMG book titled “Doing Business in Indonesia” while I waited for my appointment. The book described Indonesia as a “parlimentary democracy”, and then went on for twenty pages describing the structure of government and the legal system as if it were useful information. Only an idiot would have used that book as a basis for understanding Indonesia.

But of course KPMG had no choice because KPMG was a major corporation and needed to do business with the Indonesian government. The only Indonesians who described their government as a parlimentary democracy without laughing were Suharto and his cronies.

So KPMG and the Indonesian government—and under duress, the Indonesian people—all pretended.

Similarly with the law. In Indonesia as in most countries—and this includes the U.S.—what the law says or intends, and how the law actually works, may be entirely different.

A friend recently told me about a case of suspected fraud he is dealing with and finished up by saying that he wanted to report the situation to the Bali police, and “do you know a good criminal lawyer?”

This brings up a whole range of interesting issues.

First, my friend – let’s call him “Bill” – should not really need a criminal lawyer. Criminal lawyers defend suspects against accusations of crime. In Bill’s case he is the victim, so he should be able to go to the police and report a crime, the police will interview Bill and then start an investigation, call witnesses, call the suspect, and if the crime is proven to their satisfation, they will send the file on to the prosecutor’s office—the Kejaksaan—for trial.

That is the theory, anyway.

Making a report

Let’s look first at what happens when you report a crime to the Bali police.

After you explain your situation to the front desk receptionist and then to several other officers, your first report to the police will be dissappointingly short. A receiving officer will type up a single page letter called a Surat Tanda Penerimaan Laporan (Letter of Proof for Receipt of Report) or STPL for short which lists your name, address, passport number and so on, then a very short description—two or three sentences—of a description of the alleged crime, information about a possible suspect, perhaps a section of the Criminal Code (the KUHP) which might apply in this case, and that’s it.

You have made your report. Hold on to the STPL because as your case advances, the STPL will be an important document. Under Indonesian law, the police are required to investigate to conclusion any case which has been reported to them, and the STPL is your proof of report.

Be ready to spend many hours at the police station, because the following reports can be lengthy.

Either the same day or with a later appointment you will make a second report as a witness, called a Berita Acara Pemeriksaan (Report of Examination) or BAP which will take your information in detail. The investigator or Penyidik will not be the same officer as took your STPL.

The BAP also starts off frustratingly vague. What is your name? How old are you? Are you of sound mind and body? Are you giving evidence of your own free will? Then the questions of substance start and you have a chance to explain in detail what happened.

Although the BAP should make clear whether you were a victim or only a witness, realize that under criminal law anywhere in the world there is no real distinction between the two. I discuss the difference between civil and criminal accusations elsewhere, but in short, crimes are considered under law to be crimes against all society and therefore you have no special standing or priveledges as a victim. This can be very upsetting in crimes of violence against the person; the victim can feel assaulted twice over, both in the original assault and then again by the callousness of the law towards the victim. So be ready for it.

When your BAP is finished you will have a chance to read it over and make corrections and then sign it in multiple copies. You might get to keep one.

And now the investgator—the penyidik—will jump right on the case, call witnesses and pursue leads and bring the criminals to justice. Right?

How the police see it

Let me start with an appreciation of the police. No matter how upset you are, the police do this for a living. They see victims every day and they have probably seen many cases more shocking and heartbreaking than yours. They may not mean to be callous towards your suffering, but after years of experience they develop a certain detachment.

Further, they maintain a skepticsm at the start because it’s part of their job. Many of the people they have to deal with are cons and liars—criminals, in fact—who live their lives taking advantage of other people’s credulity. The police don’t know who you are. All police have had experiences of reports of robberies which on investigation turn out to be retaliations for bad drug deals or land frauds, and the person originally reporting the crime sometimes turns out to be the worst of a bad lot. So their first job is trying to figure out whether you are lying to them. Again, very frustrating when you are the victim.

You also need to remember that the purpose of a police investigation is to uncover a crime and deliver a suspect to the Kejaksaan—the public prosecutor—with enough evidence to lead to a conviction. The conviction rate in Indonesia for cases which advance to trial is over 95%. If an investigator can’t deliver a strong case, he has wasted his time and yours.

So the investigator is evaluating you and your evidence and the possibility of advancing a case to trial as he takes your report. He needs to know that you have reasonable expectations about how the case will proceed.

Remember that a criminal trial will net you nothing. You probably won’t get money back or damages paid. A criminal conviction might help you in a later civil trial, or maybe not. So your motive for reporting a crime needs to be to get a bad guy off the street and enjoy some satisfaction in your revenge. If you expect the police to somehow make it right for you or make you feel better, it won’t happen.

One of the biggest problems for the Bali police in dealing with crime against tourists is that the victims are tourists. In criminal cases, the victim is often the key witness. The police need to consider whether, after weeks of investigation, the eventual apprehension of a suspect, and the lengthy preparation for trial, will the tourist be present in the courtroom to give testimony? If not, the suspect will go free and the investigator gets a big zero in his evaluation file.

How a victim sees it

A few years ago a friend called me to meet a Canadian girl—call her Marie—who had been raped and felt traumatized not only by the rape but by her experience with the police. Her story was indeed sad and she choked and held back tears many times as she talked.

She had been at a nightclub in Kuta a week earlier, meeting new friends, dancing, not drinking, and she fell into casual conversation with a young man about her age. He told her he was Hungarian, his name was George, and he would be going on to Sydney from Bali in a few days. Marie began to feel ill after a couple of hours and she accepted George’s offer to help her back to her room.

She woke the next morning to find herself sick and naked on her bed with the door to her room wide open. As she tried to stir, she felt tremendous pain, but it took her nearly an hour before she was concious enough to crawl to the bathroom. She looked at herself in the mirror with horror: she had been raped, beaten, and cut in her genitals with a razor blade. Everything she had was gone except her clothes and passport.

For the next three days she cried in her room until she eventually gathered the courage to go down to the street to find someone to help. By good fortune she met an American woman living in Bali who took her to the hospital for treatment, took her into her home, and eventually took her to the police station to make a report.

When I met her a week later she was upset that the police had shown little interest in her case. Now she was just waiting for the arrival of an air ticket from her parents so she could go home to her family in Canada. I felt very sad for her, but I wasn’t clear what she wanted me or anyone to do.

After all my time with the police, I had to imagine it from their point of view. Marie had waited a week to report to them. She had gone to the hospital after three days, but no rape analysis had been done and there was no direct evidence. Even if there had been sperm recovered, there is no way to do DNA testing in Bali.

Marie had no witnesses from the nightclub who had seen her with George. Under Indonesian law, and Continental law in general, two witness are required for a criminal conviction. But Marie hadn’t been awake during the assault, so even she couldn’t give direct testimony about what had happened.

Marie was an artist and had drawn a sketch of George for the police. But there was nothing distinctive in his face, probably even less for Indonesian eyes less familiar with Western features. Maybe his name was George, maybe he was Hungarian, maybe he was going to Sydney. But if he was a bad guy, he probably lied.

If they caught George, his defense would undoubtedly be that he had walked Marie to her room and left her safely; someone else must have entered the room after he left. But it would never come to trial because the only witness, Marie, had already said she was returning immediately to Canada and she would never return.

The police had nothing, and whatever sympathy they could offer Susan was useless to heal the trauma Marie had experienced.

What will the police investigate?

But Bill wants to report a land fraud. He has proof and will be in Bali as a witness in the criminal trial because he wants to use the conviction as evidence in a civil trial to recover his assets. Will the police investigate?

I will make a practical distinction with no basis in law for the types of crimes the police will investigate most enthusiastically. The best crimes involved naked women. If you have a naked woman in your crime you are almost guaranteed to get results.

Indonesian criminal law actually recognizes two type of crimes and reports. Crimes which are unconditionally criminal are reported with a Laporan, or Report. But some crimes are only criminal if the victim complains about it, like Selingkuhan or Adultery, and they are reported with a Pengaduan, or Complaint. The difference is that a Pengaduan can be withdrawn later by the victim, but a Laporan cannot.

This is a wise provision for Selingkuhan. What is more, when a victim files a Pengaduan, it most be against both offenders equally. It isn’t possible to blame just your wife’s lover and not your wife. One can imagine the millions of Pengaduans that have worked themselves out and been withdrawn over the decades.

But Selingkuhan, like other crimes, requires two witnesses. And as an investigator at Polda Bali once explained to me, “any crime can be either achieved or attempted. For Selingkuhan, if the police break into the room and he has his thing inside of her thing, that’s Selingkuhan. If he’s trying to get his thing inside of her thing, but it isn’t there yet because he can’t get it in, that’s attempted Selingkuhan.” So it’s pretty specific.

There are reported arrests for Selingkuhan every week in the Bali Post, and when I asked an investigator why the police were so diligent with Selingkuhan investigations, he said “because we get lots of reports and we are required by law to investigate to our best abilities.” For Selingkuhan of course, that means breaking into hotel rooms and checking things. I wish the police had been that diligent with some of my reports.

The police also like clear physical crimes with obvious evidence. If you, for instance, discover your wife having an affair with another man, and you go over to his house and smash out the windows of his car with a hammer while he and your wife watch you from the window, and then they report you to the police, the police will certainly investigate - you, not the boyfriend. Unless they think they can break in and catch your wife naked.

Robberies and burglaries are good because there are broken locks and stolen objects. Beatings are good because there are bruises.

What about frauds?

Crimes of fraud, however, can present problems. Some of the reasons are obvious: do you have documents, do you have witnesses, do you have anything more than “he said, she said” testimony? Evidence of fraud is not always as obvious as smashed windows or bruises.

But the police do investigate and prosecute frauds. In the case of Julie Edmond and the KantorKita office in Sanur, Julie Edmond was accused of embezzling 1.5 million dollars from a client in a land deal as well as multiple other frauds against other clients. She was convicted in 2009 and is now serving a two year sentence in the prison at Krobokan.

Julie Edmond was an unusual case. I knew Julie and I used KantorKita services several times for help with immigration. She was Indonesian, true name Esti Yuliani, but she became Julie Edmond when she married an Australian. She spoke perfect English, opened KantorKita in 2001, seemed professional, and I had no reason to doubt her claim that she had a law degree.

She had a good reputation as far as I knew. And yet by 2009, multiple frauds were reported against her, and she was investigated, charged, and convicted.

Numerous other cases of alleged fraud, however, are never investigated, or investigations are shut down despite apparently clear evidence of a crime. Sometimes people or lawyers are involved who have what some people consider a “bad reputation”, meaning they are are rumored to have been involved in other frauds, but nothing has ever been proven against them. The alleged frauds were never prosecuted. The alleged victims left Bali.

But when Julie Edmond was accused of fraud, it was her first time.

So why does Bill need a lawyer?

In Bali few lawyers specialize in criminal or civil law; every lawyer handles everything. And Bill doesn’t really need a lawyer to report a crime to the police. But it can still be useful to have a lawyer with you, because a lawyer knows how the law and the police work, and of course a lawyer speaks Indonesian. Few police speak English, so how are you going to make a report unless you have an interpreter?

When the Penyidik finishes typing up your BAP he will give it to you to read and sign if you are satisfied. But it will be in Indonesian, so your lawyer will have to interpret for you, or perhaps you can trust you lawyer to handle the details and read it for you and tell you whether it is ready to sign.

You might feel nervous about now. Your lawyer has just had a lengthy conversation with the police which you could not understand, then made a report which you could not understand, and now he advises you to sign a document which you can’t read. Any ideas about what could go wrong?

I said earlier that you might receive a copy of your BAP to take away with you. Actually the KUHAP or Criminal Procedure Code does not specify whether the person giving the report is entitled to a copy, so whether to get a copy or not is up to agreement between the Penyidik and your attorney. I have heard of cases, one of was them mine in fact, in which the Penyidik and the lawyer told the witness he was not allowed a copy of the BAP. Untrue, and you might wonder why the Penyidik and your attorney are unwilling to let you have a copy.

I would suggest you either make clear that you will get a copy or refuse to sign (you have that right, I will discuss it in another post). Then take it to someone else who knows nothing about your case and is fluent in Indonesian and ask him to read it to you, because it turns out it is always a good idea to find out what you really signed.

Tricky question. There are many practical reasons why you need a lawyer to advise you about the letter of the law. This is important; if you fail to follow the laws and regulations, you are almost certain to run into trouble later.

But they don’t always tell you that following the law is no guarantee that you will then be protected by law. There are a thousand ways for the law to be subverted.

And one of the dangers can arise from that very person who you are trusting for advice.

There are good lawyers in Indonesia. But since lawyers are no more moral that any other group in society, there are also bad lawyers. Not all the Indonesian bar associations are rigorous about investigating or punishing their members for unethical conduct.

You need to be aware that no matter how outsiders may see things, the insiders talk about “industries,”—as in the film industry, the tourist industry. Law is the law industry. You, whether Indonesian or expatriate, are the raw material. A good lawyer will get you through the system as quickly and painlessly as possible. A bad lawyer will betray you and take you apart.

So it is useful for you to know how the system works quite independently of your lawyer’s advice. If you know you have a good lawyer you might sleep more soundly at night. If you have a bad one, it is better to find out as quickly as possible.

I wrote in the 13 July blog that top level police administrators are at their positions only one to three years before moving on. But the recent chief of Poltabes Denpasar, Pudi Rahardi, set a record for the shortest job tenure in the history of the Indonesian police. The installation ceremony was held on 1 June 2010, and he was ordered back to Jakarta on 4 June!

Why he was replaced after only three days on the job is unclear, and several unsavory rumors appeared in the newspapers. (See New Police Chief Replaced After Three Days in Office) But I believe the situation may be deeper. Pudi Rahardi is a talented and professional police officer who received his Master’s degree in 2005 for a thesis titled "Developing Professionalism under Law for the National Police of Indonesia in the Era of Reform." The thesis was published as a book in 2007 and is found in a number of major university libraries in the United States and around the world. Rahardi’s return to Jakarta may have been an unfortunate loss for Bali.

Yet there is no reason to think any less of his replacement, because the new chief, Suryambodo Asmoro, is also no doubt qualified and professional. Significantly, however, he did not overlap the tenure of the previous chief, I Gede Alit Widana. There was a tremendous roiling in the ranks of the Bali police in May and June of 2010, and I wonder if we can read any meaning into that.

I knew the previous chief I Gede Alit Widana, at least enough to talk to him several times by telephone in 2008. Pak Gede was fairly new in his position then. There were numerous indications of harassment by a “police mafia” at Poltabes against me, my friends and employees. Made Jati has a cousin named Pakris at Poltabes, and there were rumors in 2006 he had arranged support for Made. But I felt that Pak Gede probably knew nothing about the Made Jati story.

So I called him, gave him a short background, told him that I felt that the Poltabes investigative division might be involved in actions that would eventually reflect badly upon Poltabes, and I sent him a copy of the files available here in the Documents section. He thanked me, and the harassments immediately stopped.

Two months ago on 9 May 2010 Pak Gede Alit Widana was unexpectedly transferred to a new position in Sulawesi. From MSN Rape case stalled, Denpasar Police Chief Sacked “Police Chief Denpasar, Bali, I Gede Alit Widana was suddenly removed from his position. The move invites many questions, especially about the serial child rape case now under investigation and not yet solved.” Why a child rape case should lead to a police chief being suddenly removed from his position is unexplained. Poltabes had developed excellent leads by 9 May, and the suspect was captured just seven days later. If anything, Gede Alit Widana should have received a commendation.

At the same time, the article notes, many other police chiefs were shifted throughout Bali, and although Pudi Rahardi was immediately named as the new chief of Poltabes, he was still in Jakarta and was not installed in Bali until 1 June, leaving Poltabes without a chief for nearly a month. Three days after his installation, something happened, and he too was replaced.

One month later, in July 2010, after Made Jati filed another report against me at Poltabes, the investigator I Wayan Sukarta issued a police summons against me for investigation of criminal “discomfort.” I know Wayan Sukarta, too, because Wayan Sukarta was involved in all the other Poltabes complaints.

Now it was not known to the press, but it was certainly known to me and known at many levels of the police in Bali, that conflict was heating up between the National Police Headquarters in Jakarta and certain police officials in Bali about the Made Jati case. I can’t possibly speculate who has done what in the police. I will speculate, however, that conflicts over the Made Jati case are a more likely cause of these mysterious reassignments than any of the other explanations I have seen in the press.

It is my belief that I Gede Alit Widana, Balinese, had stopped the harassments at Poltabes and this caused resentments in certain quarters, that Pudi Rahardi, non-Balinese and with his master’s thesis about “professionalism and reform” was not a welcome replacement, and that Suryambodo Asmoro, also not Balinese, was brought in so quickly that he had no time to learn from his predecessors about the Made Jati case. Some members of the investigative division expect they can keep Suryambodo Asmoro away from the case, and Made Jati’s support team are off on their own again.

I was planning to go to Jakarta, but last night I talked to my friend and lawyer in Bali, Maharidzal, and we agreed to a new course. Ibu Lili Siregar at the LPSK (Lembaga Perlindungan Saksi dan Korban or Commission for Protection of Witnesses and Victims) was very receptive to our case when Maharidzal met her in Jakarta a few weeks ago. Although I was planning to meet the LPSK myself next week, I have had second thoughts.

The LPSK could protect me in Indonesia, but I would be safer not going to Indonesia at all. Staying in Los Angeles doesn’t necessarily make me safe, but there is nothing the LPSK can do for me in Los Angeles anyway. When it is time to return to Jakarta, I will ask for confirmed protection from LPSK before I arrive.

I have already received several warnings and they didn’t take, so I don’t know if there will be a warning again or if they will just do it. The beating of Tama was clearly a warning to TEMPO. (See Activist Leaves Hospital, Seeks Government Protection But it wasn’t just Tama that made me change my mind. There are many good reasons for added caution.

Indonesian has the useful word oknum, probably from Dutch. It means an individual in an organization working on his own, a rogue – oknum polisi means “rogue cop.” Some organizations in Indonesia appear to be so full of oknums that I don’t know who else is left.

I have some experience behind me by now, so let me explain: The police in Indonesia are national. All local police are nominally branches of the National Police headquartered in Jakarta. The police were actually a branch of the military until they were split off in the 1990’s with the coming of democracy, and the police still have a military structure with generals in the upper ranks.

I said above that the local police are “nominally branches” of the National Police. In practice, career paths mean that the provincial police have a strong local character. In Bali, most police at the lower levels are Balinese. As ambitious and talented individuals rise in rank, the organization circulates them to different posts in Bali, and then nationally. At upper levels many Chiefs and Department Heads are not Balinese and they don't speak Balinese; they are career officers, and at the top levels they are at their positions for one to three years before moving on to a new post in the development of their career.

This is a great strategy for building career experience at the upper levels. It also means that every upper level administrator comes to his post without a clue to what is really going on in his department, that he is dependent on information and cooperation from the local staff to get anything done, and the local staff know they only need to put up with him for a year or two before he moves on.

Every organization protects its own. The police in Los Angeles are no different than the police in Indonesia. You need to get on well with your fellow officers. To rise in the ranks you need the goodwill of your former subordinates, the respect of your superiors. You will run into these people again in your career. You can’t be a troublemaker. If there is something odd going on in your new department, it is in no one’s interest to be too inquisitive.

Indonesia may be at a critical crossroads in its history. President Yudhoyono and his administration are making tremendous efforts to eradicate corruption in a country often rated as one of the most corrupt nations on earth. Heroes like Tama risk their lives in this struggle. If the battle against corruption fails now, when will the opportunity come again?

Undoubtedly there are many police officers, including a great many at the highest levels, who are also passionate in their desire to see a professional police force in a clean and prosperous Indonesia. But in their organization, as in every organization in the world, their entire career may depend most crucially on avoiding that dreaded evaluation: “does not play well with others.”

The National Police in Jakarta really have very little idea what goes on locally, and the high level officers that rotate through the local posts, if they themselves even know what is going on, need to weigh the possibility that they may ruin their careers by telling Jakarta.

Is there official corruption in Bali? The short answer is “No, there is virtually no proven corruption in the Bali legal system!” But that answer needs some explantation.

The words collusion and corruption have specific meanings in Indonesian. They come from English, of course. Kolusi means, as in English, two parties working secretly together to reach a dishonest outcome. There is no actual law against kolusi, but it can be inferred from the results of police investigations or trials.

Korupsi looks like the English word "corruption" but it has a different meaning in Indonesia. Korupsi is a crime with the specific meaning of money or objects of value changing hands to influence a legal proceeding which brings a loss to the state. In Indonesia, at least two witnesses must testify to actually seeing such a transaction, or there must be other incontrovertable evidence, to bring a conviction. Not very often do two witnesses testify to seeing a judge or police official receive a payoff.

This does not mean that authorities in Bali are korup, however, because korup refers strictly to a judgment from a criminal court proceeding. Anti-corruption commissions under President Yudhoyono have made great progress, and many high-profile convictions have been obtained throughout Indonesia. But despite several well publicized trials of public officials for suspected corruption involving tremendous losses of public funds, hardly a single public official in Bali has ever been convicted of the crime of korupsi.

Another Indonesian law also has a bearing on this. In Indonesia, libel or fitnah is a crime punishable by imprisonment. In one well known case in 2009, a young mother with two children named Prita was imprisoned for writing in private emails to friends that she had received “unprofessional service” at a large hospital. Now if Prita had written “it seemed to me unprofessional” or “I suspect the service was unprofessional” she might have gotten away with it. But she stated as a bare fact that the service was unprofessional, and that was a charge that she, not being a doctor, could not prove. (See Prita Cites ‘Right To Criticize’ as Defense Attacks and Indonesian Law Forbids Criticism of Corruption to Hospital Service)

Even the statement “suspected of korupsi” is dangerous. This could mean that person is an official suspect in a criminal investigation of korupsi; but if no internal police document actually names a person as an official suspect in the crime, the statement could be considered criminal defamation. One must be very careful with words in Indonesia.