PRITA MULYASARI became famous, as her lawyer put it, for going from “e-mail to jail.”
Her ordeal began when she sent an e-mail message complaining about the poor treatment she received at a hospital to 20 relatives, friends and co-workers. The message, forwarded from one mailing list to another, eventually fell into the hands of the hospital’s lawyers, who sued for defamation. In no time, Ms. Mulyasari, 32, a mother of two infants, found herself sharing a jail cell with murderers and facing six years in prison, seemingly yet another ordinary Indonesian caught up in one of the world’s most corrupt legal systems.

A change in price - grooming for less long if there is another monkey that supplies apples - is only possible if a negotiation process takes place. Many economists assume that such negotiations can only take place if they are concluded with a contract. However, the vervet monkeys do not have the possibility to conclude such binding contracts and yet they still succeed in agreeing to a change in price for a service.

Indonesia Needs a Strong Water Services Law

Mohamad Mova Al `Afghani , Dundee , UK | Mon, 08/31/2009 11:56 AM | Opinion

The current condition in the water and sanitation sector is bleak. Only 31 percent of the urban population and 17 percent of the total population had access to piped water. Around 80 million Indonesians lack access to sanitation, contributing to 100,000 deaths annually and economic losses of up to US$6.3 billion.

The water law that was enacted in 2004 comprehensively regulates water as a finite natural resource. However, of all the law's 100 articles, only one (Article 40) specifically regulates water and sanitation services.

Meanwhile, the implementing regulation of Article 40, Government Regulation No. 16/2005 on the Development of Drinking Water Provision Systems (PP-16) regulates water and sanitation services only generally.

There are several possible reasons for this. The first is that the government perceives water services as a local problem and as such considers municipalities to be primarily responsible for water services. The second reason is that in order to avoid the law from being invalidated by the Constitutional Court, the Water Law does not regulate services specifically, but instead broadly and vaguely.

Indeed, the water law does not contain the word "privatization" but it does suggest at Article 40 that the "..private sector, as well as the cooperatives and other members of the society" may participate in the development of water services. Of course, some investment in water supply infrastructure can be small if they occur in rural areas.

However, in cities, water projects can be worth millions of dollars and involve multinational corporations and foreign lenders. It is certainly inadequate to regulate both these operations under the same article.

It is worth noting that the governance of water as a resource is different from water services, even though they are interrelated. The governance of water resources encompasses the management of groundwater, rivers, wetlands, lakes, catchments areas, effluent discharge and how water is allocated to competing interests such as the industrial, residential, farming and hydropower sectors.

The governance of water services is different as it deals with water supply and sanitation infrastructure (sewerage), as well as the rights and responsibilities these utilities have and what roles local government plays.

The interconnection between *services' and *resources' only comes where water is abstracted from the environment by the utility and returned to the environment as waste.

Due to the complexity of the governance of water services, some countries regulate them in a specific law. In the UK and Scotland, they are regulated under the Water Industry Act, and in South Africa they are regulated under the Water Services Act. France does not have any specific water services law, however, models of private participation are regulated explicitly through multiple legislations. These legislations, backed by the court, which can act as a quasi-regulator, explicitly acknowledges the legal relation between municipalities, consumers and concessionaire holders and regulates their rights and responsibilities.

The water services law has important functions for both consumers and investors. It protects consumers from disconnection or limitation of supply (in Indonesia, disconnection is allowed by PP-16, while in the UK and South Africa it is illegal to disconnect), it establishes a consultation mechanism for tariff setting, sets out transparency requirements and regulatory accounts, sets quality standards for drinking water and details consumer rights.

In Indonesia, the laws do not define what the "minimum standard of services" is, as it is defined in a contract. In many other jurisdictions, these standards are not subjected to market mechanisms through contracts but are a matter of statutory obligation. The reason for this is because a sub-standard service is a public health issue which requires state intervention.

Note that one of the functions of the water services law is guaranteeing the property rights of the water utility. Without sufficient regulation, investors mainly depend on contracts. The political character of water services sometimes presses local governments to assume control of some rights of utility providers, such as denying tariff increases, or even striping them off their concessions when they lose popular support.

The problem in Indonesia is that the government views private participation to be desirable in the water sector, but the Constitutional Court and the civil societies are very reactive to the idea. So the parliament and the government regulate privatization discreetly in order to avoid the wrath of the court and civil society.

In effect, privatization happens without adequate statutory oversight. This has strong implications for consumers and investors. For consumers, this means that their rights to enjoy good quality, uninterrupted water supply at an affordable rate and their rights to complain and to request compensation for substandard services is not legally guaranteed, but is simply a matter of private arrangements enumerated in a contract.

For investors, this means that their investment relies only in the mercy of local government in honoring their contract. If there is a dispute between the government and an investor, the court and tribunals will be left in the dark, as there are no clear rules that regulate the settlement of disputes. Hence, without a water services law, their investment will be at risk.

“Now our relations are no good because the K.P.K. started picking on their high officials,” said Erry Riyana Hardjapamekas, a former deputy chairman at the commission. “We suspect each other.” More recently, an active high-ranking police official, Susno Duadji, was wiretapped by the commission and caught asking for a $1 million bribe. In an interview with Tempo, the country’s most respected magazine, the police official said he knew he was being wiretapped and played along with the caller; in an allusion to the anticorruption commission and the police, he said, “It’s like a gecko challenging a crocodile.”

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.

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.