The government recently issued GR 46/2009 on the limit of liability for losses caused by nuclear accidents. Under the recent GR, liability is limited into Rp. 4. Trillion (from the previous Rp. 900 billion). Read the said GR here (in Bahasa).
Can public service law be applied to private sector?
Mohamad Mova Al Afghani , Jakarta | Tue, 07/14/2009 9:55 AM | Opinion
The House of Representatives passed the public services bill into law on June 23, 2009. The law can impose a variety of sanctions on public servants in the form of written warnings, removal from office, termination of employment and compensation to victims.
It stipulates recourse for violations of public service obligations (PSO) through the ombudsman offices, the House of Representatives and the administrative court. This law represents quite a breakthrough for bureaucratic reform.
As far as regulating government officials goes, the law is fairly strong. However, in sectors where services are privatized, it is unclear if and how this law is applicable.
Consider for example the administrative sanctions that can be given to an offender. If the case involves public officials, the law on civil servants can be used to prosecute, but this is not the case when the offender is private actor.
The law mandates that if the offender is not a civil servant, complaints must be directed to the government official who delegates the function of public service to the private actor — this is difficult.
If the offender is not a civil servant, their employment is regulated by the ordinary labor law and not the law on civil servants. The most an official can do upon receiving a complaint is to pressure the offender’s superior to take action, but the official cannot intervene in the process.
The accountability mechanism for the public and private sectors is also different. When a public official is involved, they are accountable to the House, because of his/her direct action in providing the service or through their custody of shares. This is not the case in the private sector, where employees are directly accountable to their shareholders and creditors – not politicians. Hence, recourse for the victim through the House is not relevant to private enterprise.
When public services are privatized, the relationship between private actors and the government is governed through private law. The role of public law is limited to licenses. If the government determines that private actors deliver substandard services, it can revoke their licenses.
However, license revocation does not automatically drive a private actor out of business. Private actors can sue the government in an administrative court in order to get their license back. While this process is underway, their revenue stream remains. This means that private actors can hire lawyers in their litigation against the government using public money.
In practice, license revocation rarely happens, especially if the service is vital and employs many people. The government will not risk revoking licenses for minor violations. As such, governance by licenses alone may not be efficient.
If so, then, how do PSOs extend to private parties?
The public service law, unfortunately, does not adequately address the private sector. This is discouraging, given the fact that the role of the state in providing goods and services is gradually decreasing. What the government should have done, and needs to do, is to create mechanisms that can hold private enterprises publicly accountable beyond the traditional administrative law.
In foreign jurisdictions, PSOs can be extended to cover private parties through contracts. This is known as public contracting. In general terms, public contracting means that the freedom of contract rule under general private law is constrained. A private actors’ maneuverability in stipulating provisions of a contract is limited. Any provisions which may obstruct the materialization of public service obligation will be deemed inapplicable.
In order to ensure PSOs are met when contracting to the private sector, the law can impose mandatory provisions in contract form. Conversely, the law can also prohibit private actors from conducting actions which would be detrimental to consumers.
Although there are similar legal principles in PSOs, as each industry has its own specificities, generic formulation is not possible. For example, prohibition of disconnection from services is a typical PSO for water and electricity companies, but would be irrelevant to a railway company. Similarly, cross subsidy obligations are relevant in the network industry, but that may not be the case in banking or healthcare.
The detail of PSOs for each industry should therefore be extrapolated on in sectoral regulations; the public service law can act as an umbrella regulation for each sectoral PSO. This means that a PSO for a water company should be detailed in terms of water acts and a PSO for an electricity company should be regulated by electricity acts.
The question remains whether the public service law will have an impact on incidents that occurred before it was enacted. The transitory provision of the public service law is silent on this matter. But if the answer is positive, preexisting contracts between private actors and the government which contain public service functions may need some adjustment.
Some says that this will be the end of microsoft. Maybe not, but at least it will lower the price of computers.
I have been reading Habermas theory of Juridification and the colonization of lifeworld. I came across my old article arguing in the same line.
Hyperegulated Society and Its Discontents
By
Mohamad Mova Al ‘Afghani*
The Jakarta Post,
Opinion and Editorial - June 28, 2005.
The recent National Legislation Program (Prolegnas) meeting listed 83 (eighty three) draft Laws to be enacted in the year 2006 and 53 draft Laws for the year 2007-2009. Interestingly, plenty of these draft Laws refers to non substantial issues.
Since 1999, there has been a trend toward “regulating everything”. Creating plenty of Laws or Undang-Undang is regarded as some sort of achievement and thus, promoting a step toward a modern and sophisticated society.
What went wrong with this paradigm is judging the modernity of a society by the number of regulations it creates. Laws can be plenty, but the question is, will enacting more laws guarantee its compliance? The more important question that should be raised is, do we actually need those Laws? Will those laws benefit the society if enacted?
Indonesian legal system recognizes hierarchy of rules ranging from the Constitution, Laws (Undang-Undang) and Government Regulations in lieu of Law (Perpu), followed by Implementing Regulations that consists of Government Regulation (Peraturan Pemerintah), Presidential Regulation (Perpres) and Regional Regulation (Perda). There had been around 8,000 something of such regulations so far. That figure still excludes bilateral treaties to which Indonesia is a party and sectoral regulations. A note must be taken that with the wake of decentralization, regions will enact regulations more often. If there are 400 cities/regencies in Indonesia and each of them creates 10 regional regulations per year, then there might be an addition of up to 4,000 regulations per year.
We should not be proud of enacting plenty of laws Laws. Every creation of new law – irrespective of its forms -- is basically limiting human’s liberty, as what is previously unregulated becomes regulated and restricted. Today, we find that everything that can be regulated will be regulated. There is a Law for everything, from Advocate to Notaries to Medical Practice to Road to Water Resources. If the Prolegnas goes as planned, we will have Laws on Agrarian Resources, Land Rights, Mass Organization, Auction, Fishery Court, Postal Service, Technological Audit, Trade, Precursor, Nurse Practice, National Heroes, Pharmacy Practice, Protection of Personal Data and Riverbanks, just to name a few. Perhaps in 30 years, the question will no longer be “what is the regulation”, but, “what is not regulated”.
What kind of society that wishes everything to be regulated? This question can only be answered by sociologist and social psychologist, but, what can be inferred from this phenomenon is that there is a tendency which assumes that legal certainty and social justice will be materialized if the rule of the game is written on paper.
Writing and defining things on paper does not ensure the materiality of social justice. The more something is defined, the more loopholes it creates. One does not need to study linguistic to know that words will be never be sufficient to describe reality. Laws attempts to limit an understanding through its provisions but what it failed to describe becomes a loophole for those who wish to bend the law.
Not only that more Laws mean more restrictions and more loopholes, more Laws also mean more bureaucracy. New Law creates new social institutions, new “councils”, new “boards” and new “committees”. Existing Laws already creates bodies such as the Indonesian broadcasting commission, the Truth and Reconciliation Commission, a National Water Resources Council and the Toll Road Regulatory Agency. Let’s not forget that these new bodies create implementing regulations and oftentimes, approve licenses too. These bodies also needs funds to operate, these funds are allocated from the State Budget. So, more Laws also means more expenses for the State Budget and more expenses for the public, as licenses generally require “administrative fees”.
The law is always one step behind science and technological improvements. If this year we create 83 Laws, in the next 5 years, those Laws would be obsolete and needs to be amended. In that regard, the House of Representative might be required to enact 83 amendment Laws to cover the outdated Laws. This would eventually leads to the inefficiency of the House of Representative’s work.
Also, more Laws means more distance with the people. Lay people generally do not understand legal technicalities and thus tends to be alienated from the Law itself. The happiest people that gained benefit from hyperegulation are of course, the lawyers. More Laws means more jobs for lawyers.
There are solutions that can probably limit the negative effect of or even avoid hyperegulation.
First, enactment of Laws shall be permitted only to address issues that are really necessary or to amend the existing Laws which are deemed to be imperfect. Laws that are enacted should be broad and all-encompassing. Details can be left to Presidential Regulations (Presidential Regulations made as an attribution power under Article 4 of the Constitution) or other Implementing Regulations. In addition to that, enactment of Laws must be accompanied by publication of its preparatory works. Today, when we find ambiguous article in a Law, we look at its elucidation. Unfortunately, oftentimes the elucidation only say “sufficiently clear” and leave us puzzled by what the legislator really meant. To overcome this, The House of Representative’s Secretariat General must prepare the travaux preparatoire (preparatory documentations during HoR member debates in enacting Laws) so that readers will be able to understand what has been discussed during the sessions. This will also be useful for judges as one method in interpreting the provision of the Law.
Second, turn to the court. Let judges ‘make’ law, instead of only citing provisions of a code and decides sentencing. To answer legal questions, one will be required to have adequate legal reasoning capability and understands the methods of legal interpretation. To this extent, the legal education needs to include interpretation theory into its curriculum. What must not be neglected is that the court is not only asked legal questions. Aside from that, the Court are supposed to determine what is just, thus, the Court are supposed to answer ethical question which completely have a different method of reasoning compared to legal reasoning. Judges must then knows methods of ethical reasoning and implement game theories in their decisions, such as “the maximin rule”.
Third, promulgate the Laws, travaux preparatoires and Implementing Regulations. The legal science recognizes the “legal fiction” that everyone is deemed to have known the law. A person cannot say that he shall be excused from his wrongdoing simply because he has no knowledge that his action or omission is forbidden by the law. This is what underlies the creation of the promulgation institution, the public needs to be told what regulations that restricts them. During the kingdom age, the promulgation is done by the king by sending its men to public places, sound the goong or trumpet and announce the king’s newly enacted law. After independence, Emergency Law Number 2 Year 1950 on the Publication of State Gazette (Lembaran Negara) and State Report (Berita Negara) through its article 2 obliges the Laws to be published in the State Gazette in an Octavo-sized Paper, while other important state announcements shall be placed in a State Report in a legal-size paper. This law has been revoked by Law No. 10 Year 2004. Unfortunately, Law No. 10 failed to address clearly on how the dissemination shall be made. However, as governmental offices already uses word processors, it would be reasonable to assume that one method of effective dissemination is by utilizing the internet, through an official-integrated law information website. The government has done so through several websites but this has been done without proper coordination and is rarely updated.
Fourth, instead of making highly detailed Implementing Regulations regulating for how many days an application shall be submitted and the sizes of photographs it should attached, transfer administrative matters such as licensing or approving things to computer software. The era of rubber stamps has nearly ended. Application forms and licenses approvals shall be available on-line. This will cut bureaucratic red tapes and end unnecessary bureaucratic “extra costs”.
Finally, the paradigm shall be shifted, a good society cannot be measured from the amount of regulations it has created. A good society is a society that has few laws but is effective, as it served their philosophical, juridical and teleological purposes. The best society – the civil society -- is in the other hand, a society that can coexist peacefully without law or any other form of coercion that intimidates them.
Rewriting the antiterror law
The Jakarta Post , Jakarta | Mon, 10/24/2005 2:02 PM | Opinion
Mohamad Mova Al 'Afghani, Jakarta
Long unguarded coastlines, poverty, rampant corruption, a crippled legal system and widening social and economic gaps accompanied by mushrooming religious extremism have made Indonesia an easy target for terrorists. With a little cash and the misuse of Koranic verses, it will be easily possible to brainwash further candidates for suicide bombings.
All these factors have triggered the demand to amend the existing Antiterror Law with a new one that gives more powers to the government. A high ranking official referred to Malaysia's Internal Security Act and the U.S.' Patriot Act as benchmarks of antiterror law.
As a ""post-modern"" crime, the crime of terrorism is in many senses different from that of usual crimes. Unlike most ordinary crimes, terrorist attacks are often not accompanied by explicit demands, thereby blurring their true motivation. The terrorist organization often has networks in various countries, backed with enormous financial support and its cells successfully mingle into society, making it difficult for would-be terrorists to be singled out from innocent people. Not only that, their unpredictable, suicidal actions go against most normal people's sensibilities.
To cope with these extraordinary crimes, the world's legal systems have tried to introduce legislation that deviates from normal criminal laws. Several countries have permitted actions, including a derogation of an individual's civil rights, such as the quick detainment of suspects without judicial intervention, or arrests using intelligence information that deny the right of suspects to obtain legal counsel.
The first problem to these laws is that there is no accepted standard legal definition of the term ""terrorism"". The term is more political than legal. According to the law and common doctrines, terrorism consists of two elements, namely violence or threat of violence and the spread of fear or terror. Plainly speaking, only the psychological element -- the spread of terror -- is what distinguishes terrorism from ordinary crimes. However, using this concept, many ordinary criminal offenses could still be categorized as terrorist acts, so long as they had managed to result in public fear.
This is what makes antiterror laws in this world generally bad laws: The crime itself is ill-defined. It is very difficult to measure the parameters of ""causing the spreading of fear or terror"". This element cannot be quantified and will depend heavily on the subjective interpretation of its users. This has so far been proven by how these laws have been put into practice.
Other than an elastic and broad definition of these crimes, antiterror laws commonly permit a quick detention of suspects without trial. Fortunately, our laws still require judicial intervention before detaining a suspected terrorist. The requirement to have judicial intervention in detainment and arrest originates from the notion of the Rule of Law. This means that every non-criminal is essentially free to move from one place to another.
Another practical reason to keep the judiciary involved in determining who is a terrorist is that our antiterror law permits the apprehending of individual based on intelligence reports alone. Elucidation of the law states that intelligence information could be derived from almost any relevant state institution, such as the Ministry of Foreign Affairs or the Ministry of Finance. This is a very loose and elastic provision as intelligence information is not as strong as ""preliminary evidence"" used normally in detaining a suspect under criminal procedural law.
The existing law obligates the police to obtain a warrant from the chief of a district court before conducting an arrest. Prior to issuing a warrant, the judge will have to conduct an examination of the preliminary evidence or intelligence information submitted to them within three days. It is thus understandable that the National Police have complained that judicial intervention in terror-related arrests has caused bureaucratic problems and hindered their work.
However, totally eliminating the judiciary's role in the detainment process is a very bad idea. What could be reformed is the length of the detention, which could be made shorter. The warrant-making authority could also be transferred to higher branches of the judiciary in a bid to simplify the bureaucracy.
The law also permits the random detention of highly suspected terrorists for seven days. This requirement is already tough and needs not to be extended. The police could use intelligence to monitor the suspected terrorists upon their release, or request the court for an extension of the arrest if new evidence is discovered. Efforts to reform the Antiterror Law must be conducted carefully so as not to infringe the international or constitutional rights of individuals. Indonesia has ratified civil rights conventions and would therefore have the international obligation to adhere to their provisions.
Protection from arbitrary arrests and detention is provided under the International Covenant on Civil and Political Rights to which Indonesia is a party. The Amended 1945 Constitution, Article 28D, also provides stringent protections of civil rights.
In the past, we have allowed a retroactive provision to be enforced against terrorism cases. Protection against non-retroactivity is actually something that is paramount under International Law and the Constitution. Although finally annulled by the Constitutional Court, the fact that the government and the House of Representative approved its use, is evidence that our community is becoming more permissive towards the use of excessive authority, although it has undermined the Rule of Law.
These are unpleasant signals in a society that is just beginning to succeed in building democracy. Oftentimes, the answer to social problems lies not in giving more power to the state to supervise the conduct of its citizens, or to restrict peoples' rights, but by social approaches.
These should be performed through civil education and the promotion of religious tolerance, accompanied by explicit support and real actions in combating terrorism through this nation's influential religious bodies, such as the Indonesian Ulema Council (MUI) and other relevant institutions.
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