VZCZCXRO1770
OO RUEHDT RUEHPB
DE RUEHJA #0824/01 1320721
ZNR UUUUU ZZH
O 120721Z MAY 09
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2308
INFO RUCNARF/ASEAN REGIONAL FORUM COLLECTIVE PRIORITY
RHHJJPI/USPACOM HONOLULU HI
RHEHNSC/NSC WASHDC
RUEAIIA/CIA WASHDC
RUEAWJB/DEPT OF JUSTICE WASHDC

UNCLAS SECTION 01 OF 02 JAKARTA 000824 
 
SIPDIS 
 
DEPT FOR EAP, EAP/MTS, EAP/MLS, EAP/RSP, L, L/DL FOR 
DICKERSON 
 
E.O. 12958: N/A 
TAGS: PREL PGOV KLIG ID
SUBJECT: GOI QUESTIONS USE OF HUMAN RIGHTS REPORT IN U.S. 
LEGAL PROCEEDING 
 
REF: A. JAKARTA 730 
     ¶B. JAKARTA 692 
 
¶1.  (U) This message is Sensitive But Unclassified -- Please 
handle accordingly. 
 
¶2.  (U) This is an Action Request -- Please see paras 7-8. 
 
¶3.  (SBU) SUMMARY:  Mission has received a diplomatic note 
formally complaining about the use of the 2003 U.S. 
Department of State Country Report on Human Rights Practices 
in a U.S. court proceeding (the court in question has 
apparently allowed provisions of the report related to 
corruption in the Indonesian legal system to be cited as 
evidence).  The GOI believes that the use of the report in 
court is inappropriate and it asks that the USG issue a 
"statement of interest" regarding the matter.  Mission 
requests the Department's guidance in responding to the 
diplomatic note (the text of which is attached below).  END 
SUMMARY. 
 
BACKGROUND -- A GOI STATEMENT OF THE FACTS 
 
¶4.  (SBU) The GOI has sent Mission a diplomatic note dated 
April 30, 2009, asserting the following information:  Amcit 
businessman Michael S. Fox had previously sued Bank 
Mandiri--a state owned enterprise--in Indonesia over 
non-payment of a letter of credit during the 1998 Asian 
financial crisis.  Bank Mandiri said it did not pay the 
letter, valued at $5.3 million, due to discrepancies between 
the machinery that Fox's company delivered and that which had 
been ordered.  The Indonesian court ruled in favor of Bank 
Mandiri.  The plaintiff filed an appeal to the Indonesian 
Supreme Court.  The plaintiff could have (but did not) filed 
a complaint with the Indonesian Judicial Commission, which is 
responsible for monitoring the activities of the courts and 
ensuring an independent judiciary. 
 
¶5.  (SBU) The GOI narrative continues:  Fox then brought suit 
in a U.S. Bankruptcy Court.  He alleged that he could not 
receive a favorable outcome in Indonesian courts because of 
systemic corruption in the country's legal system.  A U.S. 
court is said to have accepted the case in part because the 
2003 U.S. Department of State Country Report on Human Rights 
Practices substantiated the plaintiff's claims regarding the 
Indonesian legal system.  The case is currently pending. 
 
RAISING CONCERNS; SEEKING USG HELP 
 
¶6.  (SBU) The Indonesian government's dipnote questions the 
use of the Human Rights Report as evidence in the U.S. legal 
proceeding.  Per the dipnote, the GOI is concerned that use 
of the Human Rights Report sets a negative precedent.  The 
GOI urges that the USG issue a "statement of interest" 
regarding the matter. 
 
ACTION REQUEST 
 
¶7.  (SBU) Mission requests that the Department provide 
guidance regarding the diplomatic note contained below.  On 
the policy side, we note that the Indonesian government seems 
to be genuinely upset over this matter to the extent that its 
note asserts that bilateral relations could somehow be 
"endangered" if the USG does not provide assistance. 
 
¶8.  (SBU) We note that while some American companies have had 
difficulties in Indonesian courts, the Indonesian Supreme 
Court has recently made some positive judgments in favor of 
U.S. companies operating in Indonesia.  Notable cases include 
the TIME magazine case (ref B) and the Newmont Buyat Bay case 
(ref A).  Mission is sending scanned copies of all documents 
it received from the GOI re this case to EAP/MTS.  (Note:  We 
understand that U.S. courts have also cited the Human Rights 
Report in regard to asylum cases on multiple occasions.  This 
is the first time we have heard of such a citation in a 
commercial dispute, however.)  END ACTION REQUEST. 
 
TEXT OF DIPNOTE 
 
¶9.  (U) GOI Diplomatic note regarding Fox v. Bank Mandiri: 
 
Begin Text: 
 
No. D.00381/VY2009/58 
 
 
JAKARTA 00000824  002 OF 002 
 
 
The Department of Foreign Affairs presents is compliments to 
the Embassy of the United States of America and has the honor 
to convey (the following) on the ongoing case of Fox v. Bank 
Mandiri (a brief summary of the case is herewith attached) as 
follows: 
 
Michael S. Fox, as Trustee and Successor-in interest of Perry 
¶H. Koplik & Sons, who had exhausted all legal avenues in 
Indonesia and finally lost the case, filed lawsuit in the 
United State in order to get favourable judgment.  As a basis 
of its argument, Fox cites the United States Department of 
State Country Report on Human Rights Practices 2003. 
 
The Government of Indonesia is deeply concerned regarding the 
approach taken by the US Court that considered the Report as 
an admissible document and decided to adjudicate the case 
largely on the basis of views expressed in the said document. 
 The Court came to a conclusion that the Indonesian judicial 
system &had been shown to have systemic corruption.8 
 
In our view, this creates dangerous precedents both in the 
United States as well as in Indonesia because any persons can 
just simply cite any publicly available documents in order to 
quash a decision by the highest court in either jurisdiction 
that is considered unfavorable to a particular disputing 
party. 
 
Therefore within this context, the Department impress upon 
the Government of the United States to consider issuing a 
statement of interest on this matter for the purpose of 
serving the interest of the excellent bilateral relations 
between Indonesia and the United States, which could be 
endangered by such an approach. 
 
The Department of Foreign Affairs of the Republic of 
Indonesia avails itself of this opportunity to renew to the 
Embassy of the United States of America the assurance of its 
highest consideration. 
 
Jakarta, 30 April 2009 
 
End Text. 
 
HUME