Showing posts with label litigation. Show all posts
Showing posts with label litigation. 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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Transparency in the Judiciary (WB Publication)

Tuesday, August 10, 2010

I argued once that one of the method in curbing corruption in the judiciary is by enhancing its transparency. Most of you might be familiar with the famous formula developed initially by Klitgaard: Corruption= (Monopoly+Discretion)-(Accountability+Transparency).


The World Bank series in Governance recently issued a publication on how to enhance transparency/access of information in the judiciary in Latin America. The analytical framework might be valuable for a future Indonesian case-study. Enjoy reading!


Click here to download the file.

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Indonesia: Turning Critics into Criminal (HRW 2010 Report)

Wednesday, May 19, 2010


The HRW 2010 report released earlier this May focused on Indonesia’s defamation law. According to the Human Rights Watch’s press release:

The 91-page report, "Turning Critics into Criminals: The Human Rights Consequences of Criminal Defamation Law in Indonesia," documents recent cases in which criminal libel, slander, and "insult" laws have been used to silence public criticism. Criminal defamation charges have been filed against individuals after they held public demonstrations protesting corruption, wrote letters to the editor complaining about fraud, registered formal complaints with the authorities, and published news reports about sensitive subjects.

In an SMH op-ed published today, the author of the report argue:

Not everyone in Indonesia who airs critical facts or opinions ends up accused of a criminal offence. But the arbitrary enforcement of such laws, and even the mere threat of enforcement, has a damaging chilling effect on civil society, the media, and private citizens' willingness to express critical thoughts or opinions, especially online.

The cover page of the report pictured Prita Mulyasari, the housewife sent to trial under the defamation law for complaining for a bad health service she had received from a hospital. In my earlier op-ed, I emphasize the need for an efficient and effective out of court settlement in health cases, such as that involving Prita’s:

In a market-based solution, the parties stay out of court. If the health service provider does something wrong, they pay the patient and the patient can agree not to sue at a price. If providers don't do anything wrong, they ask the patient to issue a public apology and a sum of money to the extent that they can pay. The cost expended in this mechanism is much lower compared to going to court. This mechanism requires the government to reduce information asymmetry in the market as parties can only negotiate when the evidence is available.

This report sends a very strong message to the international community and create pressures to the government that a reform is urgent. Click on the image below to download the full report:


Related posts:
Bringing patients to court may not be efficient
Housewife on trial for defamation


[Guest Post] Court Reporters’ Role in Depositions

Monday, August 10, 2009

Below is a Guest Post from Kat Sanders. Note: Under the Indonesian Legal System, an Institution called Panitera (Registrar and court secretary) is responsible for logistic and case administration from the beginning to the end. The registrar is a civil servant working under the Supreme Court. Normally it is required that they have a law degree.


Court Reporters’ Role in Depositions

A court reporter is perhaps the most important person in the courtroom if you’re looking for the history of the trial – he or she is responsible for ensuring that every word said in the courtroom is transcribed into indelible records that can be analyzed and scrutinized down the ages. Court reporters are also very useful when it comes to recording depositions of witnesses, especially the ones whose testimony is very important to the case.

When using a court reporter for a deposition, accuracy and precision are important. To that extent, it’s wise to:
  • Talk to the court reporter and advice them about the nature of the case
  • Familiarize them with the name of the witness and other parties relevant to the case.
  • Instruct your witness to talk clearly and concisely
  • Talk at the pace you want your witness to talk too and enunciate the words clearly.
  • Avoid talking at the same time as your client or anyone else so that the deposition is recorded clearly
  • Advise your witness to also refrain from answering questions before you’re done asking them and from interrupting your sentences.
  • Make adequate arrangements to bring copies of all your records to the courthouse.
  • Tell your court reporter how often you require copies of the deposition.

Court reporters are trained to take down every word that is said in court and record a witness’ deposition word for word. This helps lawyers build their case and argue it later in court. Court reporters also facilitate the process of appeals with their transcripts which are reviewed by the concerned lawyers and sent to the higher court where the appeal has been filed. Witness depositions help lawyers prepare their cases more efficiently and easily.

There are various court reporter schools that offer degrees in the USA – they are usually distance education degrees that can be taken from the comfort of your home. In most Eastern countries, court reporting is a profession that is learned through experience. The reporters know how to take quick notes and are trained on the job to be able to record transcripts verbatim. Court reporting is a profession that is gaining in stature all over the USA, more because of the number of cases that are being tried every day.

This article is written by Kat Sanders, who regularly blogs on the topic of online court reporter school at her blog Court Reporter Schools. She welcomes your comments and questions at her email address:

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Bringing patients to court may not be efficient

Friday, June 19, 2009

This is my recent op-ed piece in JP. I tried to argue that litigating is not always the best option, both for producer and consumer in cases where credence good is involved.

Unlike buying clothes in a department store, the quality of a particular health, legal and financial service is hard to ascertain. Even if consumers have experienced the service, the long-term effect of the service remains unknown. Is there any guarantee you will not be sued for following your lawyer's advice, or that you will not experience any side effects for taking medication? No.

Health, legal and financial services exploit the high degree of information asymmetry between seller and buyer. Put simply, the service is there because laypersons don't know what to do. Clients don't know the law and patients don't know their disease.

As such, consumers rely heavily on their service provider. Demands are created by the service provider and not by the consumer alone. So clients follow their lawyers on which transaction structure they should enter into and patients follow their doctors on which pills they should buy and swallow.

Hence, at the tip of the business is trust and reputation. Reputation may be worth more than the actual quality itself. As reputation is earned through sustainable efforts in performing high-quality, honest services and a good relationship with consumers, it is the Achilles' heel of this business.

Do courts resolve tarnished reputations through their verdicts? The news that a former patient has been victimized by a health service provider is more likely to be good news for the media than news that a hospital wins a lawsuit over its former patient.

People are naturally more interested in stories where they can be projected into the situation. Hospitals are impersonal institutions owned by corporations, therefore it is not in the interest of the layperson to hear a story of them winning a lawsuit.

Is criminal libel a good recourse to repair a damaged reputation? One thing about going to criminal proceedings is that external factors come into play in the process - namely the police and the prosecutors.

Once a case has been lodged with the police and transferred to the prosecutors, it is no longer in the full control of the "victim" or their lawyers. Unlike lawyers, the police and the prosecutors worked on behalf of the state in the pursuit of (bureaucratic) justice, not in the interests of both parties.

It is not within their consideration if the hospital is interested in maintaining reputation and the former patient just wants to go home. As such, criminal justice institutions may decide to proceed with imprisonment although it may not be in the best interests of any party.

Conventional wisdom suggests going to court in libel cases to get an injunction - that is, to get a court order for the defendant to stop defaming the client.

However, this is effective only in the age of the printing press, not in the Internet age. Court injunctions are meaningless, as the cost of distributing and multiplying information for every user is very low. Once an email is sent, there is no way to stop it from spreading.

Rather than go to court, I would argue for a market-based solution. From the plaintiff's point of view, going to court means they have to pay litigation costs and legal fees. If they win in civil court, they may not be able to recover the costs as the defendant may not have enough money to pay. If it is the insurance company they are suing, the insurance company may decide to appeal, which means more costs and more publicity for the plaintiffs. If at all they finally win the case, it will not bring the damaged reputation back, so they will still need to pay a public relations company to repair the damage.

From the defendant's point of view, the judicial process is lethargic, cold, cumbersome, costly and often does not reflect their sense of justice. From the taxpayers' point of view, legal proceedings mean a burden for their tax money. Taxpayers pay every penny for electricity, water and other utilities spent by the police, the prosecutors and judges. Yet, like laypersons, judicial professionals do not know about medicine.

That is why judges need doctors to stand as expert witness. If there are two expert witnesses with conflicting views, one from the plaintiff and one from the defendant, judges will just have to choose the most convincing one and take the opinion into their decision. The end result could be far from we call "the truth".

In a market-based solution, the parties stay out of court. If the health service provider does something wrong, they pay the patient and the patient can agree not to sue at a price. If providers don't do anything wrong, they ask the patient to issue a public apology and a sum of money to the extent that they can pay. The cost expended in this mechanism is much lower compared to going to court.

This mechanism requires the government to reduce information asymmetry in the market as parties can only negotiate when the evidence is available.

In practice, this means medical records should be made available to the patient. Criminal, administrative and civil sanctions should be introduced for those who tamper with medical records or retain them from patients.

This setting will provide incentives for honest behavior. It will make information discovery cheaper for patients and insurance companies, and also prevent burdening taxpayers through complicated judicial proceedings.

The writer is the founder of the Center for Law Information.

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Housewife on trial for defamation

Wednesday, June 3, 2009

Prita Mulyasari, the housewife detained for sending letter about her experience of (alleged) medical malpractice will undergo her first criminal trial tomorrow. Prita was brought to both civil and criminal suit by PT.Sarana Meditama Internasional Cs (presumably the legal incorporation of RS Omni where she was treated). She had lost the civil suit, but was nevertheless detained by the police for the criminal prossecution.

If I were the plaintiff's lawyer, I would recommend to revoke my client's criminal offense complain to the police. With internet activists standing behind her, it would be a bad move to go on with criminal proceeding. The reputational damage caused by media blow-up does not worth the penny the hospital spent for litigation costs and public relations costs.

Tanggerang District Court website has an op-ed column about this case.