Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts
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Indonesia’s Attorney General Lost its Power to Ban Books

Thursday, October 14, 2010


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Press Release: Indonesia’s Attorney General Lost its Power to Ban Books

The Indonesian Constitutional Court in a 7-1 ruling pronounced last Wednesday, October 13th, that the Indonesian Attorney General is stripped from its power to ban books. This ruling is an important breakthrough for the freedom of expression in Indonesia.

Last January, two lawyers from the Center for Law Information, Rahmat Bagja and Fatahillah Hoed submitted a petition to the Constitutional Court demanding the Court to revoke Law No. 4 PNPS 1963 which provides the legal basis to the Attorney General to ban books.

The lawyers successfully pleaded their case before the Constitutional Court. The Court decided in Wednesday that Law No. 4 PNPS 1963 was invalidated. In the future, banning of books will have to be conducted through a court proceeding.  

Indonesia is a party to the International Covenant on Civil and Political Rights and has therefore, the international obligation to protect the freedom of expression. In the past, book banning has been used by the New Order authoritarian regime to tackle political dissents.

Jakarta, October 14th, 2010


Center for Law Information (CeLI)

Indonesia Law Report (ILR)                                                             


Picture: Mr Rahmat Bagja and Mr. Fatahillah Hoed at the Constitutional Court’s Judicial Review of Law No. 4 PNPS 1963

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The Controversial Blasphemy Law Verdict

Wednesday, April 21, 2010

Quick blogging. The controversial blasphemy law verdict by the Indonesian Constitutional Court has been published. You can download it here.

What do you think about the verdict?

Have your say.


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MK: The Blasphemy Law is Here to Stay

Monday, April 19, 2010

It's been decided a few hours ago. The Constitutional Court ruled with one concurring opinion (Harjono) and one dissenting opinion (Maria) that the blasphemy law is here to stay. I do not think that this ruling with outlaw the possibility to submit another judicial review in the future. In the mean time, it might be worth to have a look at the Court's Decision (its not yet online -- will provide a link when it is) and Justice Maria's Dissenting Opinion.

See my recent working paper on the constitutionality of the Indonesian Blasphemy Law at the SSRN.

See related news at Detik (in Bahasa).

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Religious Freedom in Indonesia Before and after Constitutional Amendments

Saturday, April 10, 2010

After asking permission to the editor, I decided to revise my paper, previously published in a book by Brainbow Press.  The working paper version is available in the SSRN. Abstract is provided below. Do send me email/post some comments. 
Download here, or read this SSRN page
Religious Freedom in Indonesia Before and after Constitutional Amendments

The Indonesian Constitution is very unique in terms of its relation between religion and the state. It is stated there that that the state is based “…on the belief in the One and Supreme God” but at the same time, it never explicitly mentioned the name of any established religion. Historical interpretation into the constitutional drafting process and revelation from the founding fathers on their understanding of 'God' and religion reveals that the Constitution is neutral with respect to religions and worldviews. However, the Constitution does prefer a theistic worldview over the non theist. The consequences for this is that the state may provide financial and other supports to the followers of religions (provide positive discrimination) but must not interfere with the freedom of followers of any other worldviews to profess their beliefs. Recent amendment to the Constitution reinforces this neutral stance. This would have a significant impact on the constitutionality of blasphemy laws. 
Keywords: indonesia, religion, blasphemy, human rights, constitution 
Working Paper Series

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The Social Cost of Cigarette (and its advertisement) in Indonesia

Thursday, September 10, 2009

Pramudya has been very kind in providing us a commentary on the recent Constitutional Court Decision on Cigarette Advertisement in his post. I agree with him that the negative externalities arising out of cigarette must be borne by the consumer and that -- given the explicit contribution to income -- dealing with tobacco industry in Indonesia would not be easy.

A research by Achadi quoting WHO suggests that around 10% of mortality in Indonesia annually (200,000 deaths) are caused by tobacco. 61% of other deaths are caused by non communicable diseases which may be related to active or passive cigarette consumption. Another shocking discovery quoted by Achadi's research is that more than one in two household in Indonesia has at least one smoker, and 98% of them smokes at home. What this means is that they pollute the air in their home and affects their children.

What are the health cost to children who are passive smoker? A research in the UK shows that at a worst case scenario where everybody smokes at home, the health cost per child would be 16.000 GBP per year. If broken down into the number of cigarettes (20 per day and remember that british cigarettes contained filters, non-cloved and are typically milder than Indonesian), the cost would be around 62 to 92 GBP per cigarette. What it means is that in order to offset the negative adverse effect of a cigarette to children, each will have to be priced around 62 Pounds (or at a current rate, around IDR 1.000.000,00). I think this figure still does not include the opportunity cost for getting sick.

The cost of a Dji Sam Soe cigar is around IDR 750. But that's not the true cost. It will raise health insurance premium, dental care, house insurance premium (cigarette butt is a little friend for the big fire), car insurance, cleaning costs, retirement fund and many other items I cannot list down since I am not an economist. And remember, smoking near babies may cost another 62-92 pounds per cigarette (excluding opportunity costs).

If smokers are unable to pay these costs, this will go to the state's expenditure. Which means, in the end of the day, non smokers will be paying for the true cost of every cigarette through their tax.

I don't smoke but occasionally I bring cigarettes as souvenirs. Makes me feel guilty :(
Okay, from now on, no more cigarette for souvenirs.


Virtual worlds and the science gateway to democracy

Friday, June 5, 2009

C Milburn argued that virtual worlds such as Secondlife opens the gateway for science towards democracy. As I have previously written, secondlife's copybot resembles a nanofactory. Future post molecular manufacturing society could be benefited by the simulation from these virtual societies. How secondlife handle copybot might be an inspiration on how we handle nanofac.

Download the paper "Atoms and Avatars: Virtual Worlds as Massively-Multiplayer Laboratories" here.

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HP 3 Rights, What Strategy for NGOs?

Tuesday, May 19, 2009

Following my Articles on HP-3 in Jakarta Post ("The need for Clarification on HP-3 Rights" and previously "Coastal Management Law Review?") it is relevant to ask question on which course of (legal) action would our Civil Societies colleagues take, in response to the enactment of Coastal Law.

I can think of three possible actions by Civil Societies:
  1. Judicial Review. Most activist would blame the Law for its interest in privatizing coastal areas. As such, they would be inclined to invalidate Law 27/2007. But what reasons can be used to submit the JR? Roughly speaking, I would say that any attempt to invalidate Law 27/2007 will have a very minimal chance of success. I do not see any provision under the Law which diametrically contradicts the Constitution. True, that the implementation of the Law may deprive certain members of the societies (such as the Adat Community) from their Constitutional rights, but in general, the black letters of Law 27 guarantees the preservation of existing traditional rights. Thus, if JR is to be opted, the most convincing hole would be to contradict the ill-defined HP-3 rights against "legal certainty" provision of the Constitution. I am not suggesting that this measure would be effective as property rights needs not to to be fully defined (a 'complete' property rights is impossible anyway), but there is a chance of success since "legal certainty" is weighed considerably by the Court. In any case, a move in reviewing Law 27 must not be aimed at winning the case completely (which result in the complete invalidation of the law) but simply in getting partial invalidation of harmful articles or, if not possible at all, in gaining the Court's recommendation for safeguarding its implementing regulations.
  2. Legislative Review. If one thinks that the Law is insufficient or defective invalidation may not be the option. The Court's function is in ensuring that provisions of Laws are Consistent with the Constitution. So, if there are provisions of laws which is consistent with the Constitution but is nevertheless defective, the Court may choose to reject the petition to invalidate and recommends it for a legislative review. However, when a Law is recommended for a legislative review by the Court, it does not necessarily follows that the parliament will take the Court's suggestion. There are so many Bills that the Parliament needs to enact in any given year and there are political (as well as administrative) costs for rediscussing an already-enacted bill.
  3. Implementing Regulation and Its Reviews. Law 27 will require plenty of government regulations and regional regulations to be implemented. In terms of technicalities, this measure is the most technically feasible. It is easier to change implementing regulation than annuling a provision of a Law or modifying it through legislative measures. Option #1 involves proceedings at the Constitutional Court and option #2 involves deliberation by parliament members. Option #3 however, only involves the government. It is easier for the government to enact regulations which are friendly to the cause promoted to Civil Societies. But because Option #3 rests on the discretion of the government alone, there is always a chance of capture by business interests. A way of rejecting an enacted government regulation is by conducting an appeal to the Supreme Court. Note however that the appeal for Government Regulation (against a Law) in the Supreme Court would take a very long time, as the Supreme Court has a very high case-load.
From these options, I would suggest Civil Societies to first submit a JR to the Constitutional Court. This must be done with a caveat that it has a minimum chance of success, so the aim of the JR should not be in entirely invalidating the Law but in obtaining partial invalidation and recommendation from the Constitutional Court in safeguarding the Law's implementing regulation.

This move will benefit Civil Societies developing monitoring and stakeholder participation capacity during and after the property rights setting takes place, as institutional set-up for HP-3 (zoning, etc) and its implementation are prone to capture.

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More on blasphemy law

Saturday, January 19, 2008

I wrote an article on how the law on blasphemy and the abuse of religion could contravene the constitution. There, I conclude that the Indonesian Constitution contains no specific reference to any religions and that Article 29(2) of the constitution was meant to protect not only major religions but also all beliefs. Any attempt to prohibit certain religious interpretation such as done through Articles 1 and 3 of Presidential Enactment number 1/PNPS/1965 on the Prevention of Blasphemy and Abuse of Religions would therefore infringe the constitution.

In another recent article, I explained that Article 4 of Presidential Enactment 1/PNPS/1965 which contained a provision of 5 years of imprisonment for those “who deliberately, in public, which in essence sparked hostility, insulting or abusive views towards religions with the purpose of preventing others from adhering to any religion based on God” could be in conflict with human rights (HR) norms.

Blasphemy laws could be permitted by HR only when it is intended to prevent harm to others. I wrote:
Thus, a Human Rights-compliant blasphemy law should contain very restrictive conditions, namely that it is applicable only when it is “…necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others”. And, not only that the restriction must be “necessary” in order to prevent harm, it must also be “proportional” to the goal.

The Presidential Enactment (vis a vis Article 156a of the Criminal Code) has other purpose than preventing harm. Thus, it may be inconsistent with international human rights instrument.

Read more here.

My other article discussing Prophet Muhammad Cartoon.

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Safeguarding Water Contracts (peer-reviewed version)

Saturday, December 8, 2007


The The provision of water and sewerage services has been in the public sector for thousands of years. However, the trend towards privatising these basic services has recently been growing. When dealing with Multinational Corporations (MNCs), governments face risks in the form of legal asymmetries.

This paper explains the theory and practice of water privatisation in Indonesia. It analyses the legal anatomy of privatisation, from the regulatory to the contractual levels. It attempts to highlight important issues and risks that governments and other stakeholders need to focus on when dealing with privatisation.

We've made some significant editing for this version. Download the full paper here.

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State and Religion relationship in Indonesian Constitution

Friday, December 7, 2007

An excerpt from my newspaper article:

Unlike in theocratic states, in Indonesia, clerics may issue a verdict (fatwa) but this verdict is not legally binding.

It is important to note that the word "God" appeared many times on the Indonesian constitution. Nevertheless, unlike the UK/Greece model, Indonesian Constitution is silent with regard to recognition of a particular religion.

There is no single article in our Constitution that mentions the name of a particular religion. Article 29 stipulates "the state is based on the belief in the One and Supreme God" but does not explain further -- "God according to who?"

Moreover, although Indonesia "is based in the one and only god", the constitutional practices in the past allowed non-atheistic beliefs (as implemented by the Indonesian Communist Party and local beliefs such as kejawen) to grow.

I therefore tend to conclude the Indonesian model sits somewhere between the German and the Greece/UK model.

The Indonesian Constitution is not neutral towards religion. It is "pro-religion" in the sense that it prefers and supports a theistic worldview rather than the non-theist worldview, but is nevertheless neutral on which theistic view it prefers the most. Thus, the idea of "state-acknowledged religions" (agama yang diakui negara) actually has no constitutional basis.

A pro-religion constitution means that religious adherents may enjoy more freedom of religion in positive terms (the freedom to exercise) through state facilities compared to adherents of non/atheistic beliefs.

However, the negative freedom (the freedom not to be forced toward a particular religion or belief) of all persons remains protected. The power struggle within a particular religion is clearly not the business of the state.

The state has no constitutional authority to dictate its citizens on which version of God it shall worship. Forcing a particular religious interpretation would infringe article 29 (2) of the Constitution.

That means, if you are a moslem and works at public institution, you can wear a scarf (in Germany this could be prohibited if you work as a teacher, as it tends to influence the pupils, whereas the state has to be neutral from religion) and government offices can also be used for religious activities. However, if you are an atheist, you cannot expect the government to allow you to use their facilities to perform your ritual. You can do it somewhere else of course, at the government needs to protect that.

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Foreigners has no right of judicial review

Monday, November 19, 2007

A colleague of mine explained eloquently in his blog that only Indonesians -- and not foreigners -- are entitled to request judicial review to the constitutional court. This does not mean that foreigners do not have legal rights. They are guaranteed with legal rights -- as well as constitutional rights, however they do not have the formal procedural previleges to request a review.

This brings me a question. Supposed foreigners are legally harmed by a provision of a law, then who would have the standing to challenge the law? Indonesians will not have such standing as they do not sustain legal injury (and not the "adressat" of the norm). This will leave the problem in a legal limbo. The laws would be left unchallenged.

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Company Law to be Judicially Reviewed

Sunday, August 19, 2007

Still an unconfirmed news (will be confirmed if they log their case on the Court's registrar). Chairman of Apindo Sofjan Wanandi planned to submit a Judicial Review of the newly enacted Company Law to the Constitutional Court. He argued (link in Bahasa) that the Merger Rules on the new law -- which obligates companies to announce its merger decision prior to general meeting of shareholders-- was unfair.

I still don't know how it can violate the Constitution. Article 33 of the Constitution expressed that the economy is built upon a 'common endeavour' based on familial principles. I suppose, the families here could mean the workers too.

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The right to water must be explicitly stated in the Constitution

Monday, July 9, 2007

JP has just published my Article on the right to water today:

Access to water is a fundamental human right

Mohamad Mova Al 'Afghani, Jakarta

Enough has been said about the depletion of our supply of fresh water from industrialization, deforestation and climate change. Now, the rise of megacities is also complicating the problem.

In a recent report, the United Nations Family Planning Agency (UNFPA) predicted half the world's population would be living in cities by next year, with the figure expected to grow.

This presents challenges for more effective land use, transportation and the fulfillment of minimum daily subsistence. Cities that fail to meet these challenges will become "failed cities", marked by the rise of megaslums.

The problem with water is that it is complicated by the fact that policy in this area is highly intertwined with other sectors. More food requires fine agriculture, which can also mean more water. More clothing requires industrialization, which can involve the use of more groundwater and the pollution of water sources. Housing can also cause problems if built above water catchment areas.

Failure by states to provide their populations with adequate water for drinking and sanitation can be considered a violation of international law.

Under Indonesia's current system, access to "water sources" is guaranteed by the Water Resources Law. Articles five and 16 of the law stipulate that every municipality must fulfill the minimum daily basic water needs of its local community.

However, the Constitution is silent on the right to water. The Water Resources Law for example -- due to the absence of the right to water in the Constitution -- only cites Article 33 of the Constitution, part of the economic chapter regulating natural resources.

This could be a problem, since water rights could then be perceived as existing only as derived from the economic provisions of the Constitution. Contrary to this interpretation, the international community now regards the right to water to be a part of the language of human rights.

The Constitutional Court acknowledged that access to water is a human right in its decision on the judicial review of the Water Resources Law. However, the court's decision does not bear the same weight as a provision of the Constitution.

Explicitly incorporating the right to water in the Constitution does not appear to be helpful at first glance. Adding more words to the Constitution will not provide more fresh water. But that's not how the legal system works.

The law, operating in the language of rights and obligations, helps answer questions on how to prioritize the allocation and use of existing resources. If, for example, there is a conflict between the right of an individual and the right of a company to exploit water, who should prevail? Does an individual have the right to challenge a factory because the water in his or her well is being depleted?

With the rise of megacities, the problem most likely to emerge will be disconnections from the water network. Imagine that in the future -- all at the same time -- the quality of groundwater worsens, reserves drop thanks to interference with catchment areas and urbanization drives up demand for water.

More and more people will rely on water networks for their supplies. Will water companies be able to disconnect those unable to pay?

Here is the question of whether we should see water consumers as mere actors in the market economy (who get their water as long as they pay) or as citizens (who are entitled to water regardless of whether they can come up with the money). If such a cases were brought to local courts where judges were not aware that access to water was a human right under international law, there is the danger that judgments will end up reflecting the narrow, market-oriented view of the consumer.

If, once again, the water resources law is perceived as only a derivative of economic chapters of the Constitution (Article 33), then the outcome of cases such as the hypothetical above would likely follow what has happened with other natural resources such as oil, gas and minerals.

But the way people need water is not the same as the way they need oil, gas or coal. So it is not adequate to argue about the right to water within the realm of Article 33. The right to water must stem from the human rights provisions of the Constitution, and that can only occur if it is expressly stated.

This does not mean that processed water should be available to everyone for free. A price should be associated with it to encourage people to conserve available resources. However, the provision of water and sewerage should be from the perspective of being a public service.

Individuals receiving the service are not mere consumers purchasing goods in the marketplace. They should be treated as citizens receiving services from the state. Their entitlement to water should be guaranteed by the government even if they are unable to pay.

It is the state's duty to respect, protect and fulfill the right to water. The quality and quantity of the amount of water individuals are entitled to must be clearly stipulated in law and not left to market mechanisms to decide. Water companies will have to be efficient and sustainable but at the same time pay due regard to prevailing regulations. Therefore, regulations on subsidies to the poor as well as speedy and cheap dispute resolution mechanisms when it comes to water disconnections must be in place.

Putting the right to water in the Constitution will not directly solve our water problems, but it will clarify to the government that they have a constitutional responsibility to provide this most essential of resources.

I think water issue should be given a substantial proportion during the current constitutional amendment process. The present law on water resources is not clear with regards to conflict between water exploitation right (used by companies) vs water use right (used by individual for daily subsistence). The best way is to state in the constitution that water is a fundamental human right.

Colombia, Ecuador, Eritrea, Gambia, Ethiopia, South Africa, Uganda, Uruguay and Zambia have provisions on the right to water in their constitutions.

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Couping the Constitution, a Pakistan Way

Sunday, May 13, 2007

Holding a chief justice under hause arrest and then putting him on a suspension so that he does not got in the way on the next election is a not so cool way of doing a coup. This was said to be Pakistan's Chief Justice's first email after he was being 'detained' at the Presidential Palace:

So that as it may by passing restrained order by the council as well as the earlier order notified in notification no 529/(2)/2007 issued by the president of Pakistan which is equally contrary to the constitution I have suffered as under:

(A) Detained for all intend and purpose with my family members including my infant child of 7 years from the evening of March 9th, 2007 uptill now. My official residence is sealed with heavy continget comprising police and member of other agencies. For which there is no justification.

(B) The vehicles which were in my use have been taken away by means of a lifter out of which one has been brought back by a lifter without its keys.

(c) Staff of Supreme Court attached with me is reportedly missing and had been kept at an unknown place. I believe that they have been detained just to fabricate evidence against me. I have also learned reliably that my chamber was also sealed and reportedly files lying there have been removed and some of them had been handedover to ISI under the supervision of newly appointed registrar. Such act is contrary to all norms and practices. I being CJP is entitled to occupy my chamber along with my staff.

(D) On account of deployment of heavy contingencies I am not allowed to go outside nor my family members are allowed to do so. Similarly no one is allowed to meet me freely. In as my colleagues have no access to me and whenever they want to visit they have to wait on the gate for a considerable period during which permission is sought from high ups of Mr Justice Raja Fayyaz can be quoted as on one occasion he had to go back without meeting me. Similar treatment was offered to Mr Justice Munir A sheikh (Retd).

(E) My children are not allowed to go to school, college and university I am not getting facility of telephone cable and DSL. Similarly I along with my family members have been deprived from basic amenities of Life ie medicines and doctor etc. (F) No. panel of lawyers is available to discuss the legal and factual issues involved in this reference. This act I have already highlighted on the notice received on March 10th, 2007.

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Resurfacing the death penalty debate

Thursday, May 3, 2007

Constitutional Court is now adjudicating the petitions to abolish death penalty submitted by narcotics convicts. Let's see on how they will decide this matter. I wrote an op-ed piece with Faiz on today's JP on the issue. Here's a quote:

The ICCPR does not prohibit the death penalty but its protocols do. As Indonesia is not party to any ICCPR protocol, the practice of the death penalty will not violate any international obligation to the ICCPR as long as the treatment of the inmates on death row and the execution of convicts is conducted in accordance with international standards.

It is then left to the problem of constitutional interpretation. Article 28I (1) of the Constitution guarantees that the right to life cannot be limited under any circumstances, but Article 28J (2) states that "In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law... based upon the consideration of morality, religious values, security and public order in democratic society". The debate goes on as to whether the application of Article 28I (1) -- due to the phrase "cannot be limited under any circumstances" -- is non-derogable, including by Article 28J (2).

The convict's attorneys think that the rights under Article 28I (1) belongs to the cluster of rights which are non-derogable, including Article 28J (2). The government on the other hand, is of the opinion that Article 28J (2) may derogate Article 28I (1). Toward this polemic, there are a few methods of interpretation that can be applied.

First, by using the literal approach, it would appear that prohibition of the death penalty is stated nowhere in the Constitution. The wordings of "cannot be limited under any circumstances" under Article 28 I (1) cannot therefore be interpreted so as to mean prohibiting the death penalty. A comparison with Germany and Vietnam's constitutions would reveal that the prohibition of the death penalty is supported with a written, literal expression of the articles of the Constitution. As Indonesia's Constitution has no such provision, the death penalty is so far in line with the Constitution.

Second, by using the teleological approach, it can be seen from the preamble that the purpose of the Constitution is to first "protect the whole people of Indonesia and the entire homeland of Indonesia". Indonesia reportedly has 3.2 million drug users with the number of deaths around 15,000 users per year or an average of 41 deaths per day due to overdose or drug-related AIDS infections. The state has a constitutional obligation to prevent these deaths and to prevent the occurrence of a lost generation. Thus, the protection of the people by the state is paramount and would constitute a higher obligation in comparison to other duties.

Third, using the systematical method of interpretation, it would be clear that Article 28 J is placed under the same chapter as Article 28 I, which is the amended human rights chapter. It is then conclusive that Article 28 J was made "in relation and with due regard to" Article 28 I. We do not consider it appropriate to interpret that the restriction towards the implementation of human rights under Article 28 J refers to clusters of rights other than Article 28 I. The restriction under Article 28 J appears to cover the whole set of the Constitution.

Moreover, under the social contract construction, perpetrators are deemed to have waived their right to life, which is protected under the law, by acting in a manner that results in the loss of life. Thus, by "knowingly" killing others and being aware that their action entails capital punishment, they have given "implied consent" to be punished with the death penalty.

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Water law in Indonesia

Monday, February 12, 2007

I am doing some research on drinking water contracts between water companies and regulators/government, so my next updates will be dominated by water law issues.

Anyway, here's some info as a backgrounder. The Constitutional Court had declared Indonesia's new law on water resources "Conditionally Constitutional". This means that affected parties will have opportunity to submit another judicial review to the Court if they are able to prove that in practice, the law is implemented differently than what has been suggested by the Court.

I wrote an article on that issue which you can download here (pdf). And here's the abstract:

Enactment of the Water Law in Indonesia has arises public debate. The Judicial Review of the Law by the Constitutional added to this controversy as it puts the legality of the water regime in Indonesia in a “twilight zone”. This article explained the historical background of the water regime in Indonesia and its development, analyze the position of water rights and human rights to water under Indonesian Constitution, elaborates the key provisions of Indonesian water law, elaborate water law's judicial review by the Constitutional Court, analyzes the legal consequences of the review and recommend the government on the parts of the law that needs to be amended or modified. The author also discusses several important issues that needs to be weighed by governments when creating the water law's implementing regulation, including regulating several standard contract provisions between government and water investors.

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Water investment in Indonesia

Friday, January 19, 2007

A good article on water investment appears on today's Jakarta Post:

No significant improvements in services have been seen since the Jakarta water business was taken control of by the foreign investors, as evident from the thousands of complaints sent to the companies. There are now a number of unresolved problems that the new investors will have to tackle as a legacy.

First, the scarcity of raw water, particularly during the dry season, as the companies rely too much on water from the Jatiluhur reservoir in West Java. Meanwhile, the water from the 13 rivers in the capital is too dirty to be processed into potable water.

Second, many people are unhappy about a clause in the agreement that provides for automatic water-price increases every six months. There have been rumors circulating that the privatization of the tap-water business was made possible due to collusion involving the family of then president Soeharto. Both Palyja and TPJ have denied the accusation.

Third, water privatization remains a controversial issue in this country, despite the enactment of the 2004 Water Resources Law. Many insist that privatization will deny the poor access to water.

Fourth, and most problematic, many customers say they have not seen any significant improvement in services since the arrival of TPJ and Palyja, although the two companies say they have invested a lot on improving water-supply infrastructure, such as the construction of new mains and the repair of old ones

The Judicial Review of the Water Law by the Constitutional Court arises important legal consequences for water investment, as I have previously discussed in my article at the LEAD Journal downloadable here. The consequences of the judicial review are:
The Court (with 7 concurring and 2 dissenting) held the Law to be “Conditionally Constitutional”. It considers the Law to be sufficient in protecting the citizen’s right and is so far compatible with the Constitution. It however warned that if the implementation is different than what has been outlined by the Court in its Decision, the Law can be subjected to a re-judicial review.

The Court is silence with regards to the parameters of “implementation”. Implementation can mean Implementing Regulations of the Law or the Government’ s Practice in the form of decrees, circulars or unwritten decision of the bureaucracy. It is not known as to whether -- for example-- a single cooperation contract between a regional government and a foreign investor or a bureaucratic behaviour requiring traditional salt farmer to obtain license from his village chief can be used as a ground for re-judicial review.

The author is of the opinion that examination of ‘Conditionally Constitutional’ should refer to policies of the Central Government and validity of the Law’s Implementing Regulations. It is also important to note that the Court tends to reinterpret the Law at several occasions in its Judicial Review as seen when examining Customary Water Right

"Pricing" is going to be a problem and a possible source of conflict. Unfortunatelly the law is silent of this matter. It is to be regulated in implementing regulations.


Four reasons why Constitutional Court's reasoning is not compelling

Thursday, January 18, 2007

In our newspaper Article, we highlighted four reasons why Constitutional Court's reasoning in invalidating Article 53 of the KPK Law was less compelling. The four reasons are:
  • First, there is no evidence whatsoever that regulating the Corruption Court in the same law as the Corruption Eradication Commission (KPK) automatically violates the Constitution. The Constitution only mandates that the composition, membership, appointment and procedural law of the courts existing below the Supreme Court is regulated by a law. The KPK law has fulfilled such requirements and should therefore be consistent with the Constitution.
  • Second, there is no guarantee that "equality before the law" will be observed by simply segregating the corruption court in a new law other than the KPK law. In order to be fully constitutional, the future corruption court must have specific competencies in adjudicating all corruption cases, as part of a "one-roof" system.
  • Third, the Constitutional Court did not clearly establish the link between a violation of the "equality before the law principle" and why the existence of the corruption court under the KPK law violates such a principle. The reference made by the court in justifying its argument is more to "a custom of regulation", and not directly about the Constitution itself. It is a custom in Indonesia that special courts are regulated through specific legislation, but this custom does not imply that it is a Constitutional requirement to regulate specific courts in an exclusive law.
  • Fourth, there is presently no direct constitutional injury suffered by anyone due to these measures, so the dangers as seen by the court are potential, not actual. It is true that there has been discrimination against people in corruption cases -- those who go to ordinary courts are generally treated more lightly compared to those detained by the KPK. However, these are not direct constitutional injuries but merely injuries caused by a corrupt legal system. Had the legal machinery functioned properly, these negative effects could be minimized as the law has already outlined the exact competencies of each institution.


Constitutional Court's decision on Corruption gets mixed response

Tuesday, January 2, 2007

Constitutional Court invalidated article 53 of the Law on the Commission on the Eradication of Corruption. Article 53 regulates the establishment and jurisdiction of a Corruption Court. The Constitutional Court said that the Corruption Court is unconstitutional as it violates the legal certainty and equality before the law principle.

Law experts have different views:

State Secretary Yusril Ihza Mahendra said the Constitutional Court's ruling posed a serious judicial problem, as those tried and convicted by the Corruption Court would have grounds for complaint if the court turned out to be unconstitutional. "Article 53 of the law on the KPK is clearly against the Constitution, but its existence has been extended for three years. This will be a problem for those who feel their rights have been violated," he said.

Anti-graft activists on Thursday blasted the Constitutional Court's verdict, calling it a "symbolic victory" for those involved in corruption. "The ruling is nonsense. The Corruption Court does not violate the Constitution. Its existence under the law on the KPK does not have any effect on its independence or impartiality," Bambang Widjojanto, who chairs the ethics department at Indonesian Corruption Watch, said at a news conference.

I also have my own view on the matter, which tends to be in the same position with anti graft activists. I have wrapped an article for the Jakarta Post discussing it. We will discuss it in this blog after it is published.

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Secondlife's copybot, nanofactory and the future model of constitution

Saturday, November 25, 2006

The economic downfall of a system can be caused by a machine that can copy everything. That is the lesson we get from online game, secondlife. And the remedy? Sue the software developer under DMCA. I consider that to be a bad option, and I will tell you why.

Secondlife's Constitution (read: Terms of Service) regulates:

3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.

Users of the Service can create Content on Linden Lab's servers in various forms. Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.

This was a post at the official secondlife blog:
Today I met with a large group of Residents, members of the Sellers Guild, to talk about the implications of a recently-developed LibSL product called CopyBot. CopyBot allows the user to create a replication of an object, including textures, that is fully permissive. Needless to say this product has caused tremendous worry among content creators who want to understand how its use may possibly affect their business. In particular, they are concerned about theft of their creations, and the potential for unscrupulous people to undercut their prices and essentially take away their business...
Merely copying something doesn’t mean that a copyright violation has occurred. The law discusses ‘fair use’, for example, as one type of copying that is not a violation. If you DO think someone has copied something you made and is violating your copyright by profiting from the copying then you do have the option of using the DMCA process to file a complaint.
I have not hear any case where online game disputes are brought to a court, and the decision is enforced. In my last blog post, I refer to a story in which the court decide not to enforce an oral agreement pertaining the sale and purchase of a virtual sword. However, if brought to a court, the current copybot case is slightly different to the case I mentioned earlier, as it deals with copyright, something that is adhered in a real world.

Copybot is a software provided by Libsecondlife. Its purpose is altruistic, the program itself is open-sourced. Libsecondlife applies disclaimer which exempts liabilities from the utilization of its software. Although Libsecondlife does not directly infringe copyright, it could still be held liable under contributory infringement. Contributory infringement is a form of direct infringement in which, a party is aware that (1) there is an infringing activity, (2) it provides assistance or inducement for the infringement. Contributory infringement usually occurs when a party uploads serial numbers or providing a website to upload/download unauthorized serial numbers.

However, this may not be exactly the case with Libsecondlife as they only provide a hack software to be used outside the game itself, via a third party channel. The only problem is that, players are using the software in an infringing manner. So, although Libsecondlife is acquittable to contributory infringement, the case is "thin".

Nanotech expert has been calling the falling down phenomenon of a system due to the birth of abundancy as "disruptive abundance". It is feared that when nanofactory is available for free, then the existing system could collapse. Some experts has suggested to apply artificial scarcity in order to prevent the disruption. This is created either by restricting the ownership of nanofactory or providing technical restrictions to productions.

The fundamental difference between secondlife and future application of MNT is of course, in second life, disputed parties can log off their computer, get back to the real world and settle their dispute in a court. In the future MNT society, there is no way to log off.
Now, how are we going to settle our dispute? The only way of settling the dispute is by referring to our own rules of the game, the Constitution of the post-MNT society. What would the constitution look like? I don't know.

It would be great if parties in the second life disputes settle their case out of court, inside their own virtual world. We shall see, would they be able to settle their own problem or not? Can they use their rationality and refer the case to their own Constitution (read: Terms of Service)? I would suggest that they form their own internal dispute settlement mechanisms. I want to know how it work, as the results can be used to model the legal system of the future societies. If Secondlife citizens fail to solve their dispute and would need a court settlement, then it would be depiction of our future society: we will fail in settling our dispute and would require some extra terrestrial help (which of course, will never arrive).

When arguing about the existence of a law in international relation, Hugo Grotius said in latin: ibi societas, ubi ius. When there is society, there is law. When there is international society, there is an international law. When there is a virtual society, there has to be a "virtual" law.