The New Law on Coastal Management

Tuesday, April 15, 2008

Here's my recent Article on Coastal Management Law in JP:
Theoretically, there could be around 12 nautical miles times 81,000 kilometers of "greenfield" spaces in the sea, ready for exploitation, for up to 20 years. This is indeed a huge business opportunity. For companies whose core business is aquaculture (shrimp ponds, fishes, coral reefs, pearls) and eco-tourism, HP3 would be a crucial issue. What makes HP3 even more valuable is the fact that it can be used as security for loans.

HP3 is also considered to be a pro-rich policy, as it would be unreasonable for traditional and local fishermen to enter into such a scheme which entails high administrative costs.

Let us first consider the arguments above. Indeed, some parts of our coast could be vulnerable of tsunamis, but those located in internal waters are likely to be less exposed to the dangers. For the vulnerable parts, disaster mitigation measures might require the building of artificial or ecological infrastructure (sea defenses) in order to break the waves and such measures -- they argue -- might be in collision with HP3 rights. This concern is nevertheless already addressed by the law.

The second argument on public participation is important. Our Constitution specifically states the economy must be carried out as a "common endeavor" based on familial principle. The Coastal Management Law does say that when granting and monitoring HP3, public aspirations must be taken into account. But this role is only consultative as the public takes no part in the final decision-making process.

In addition to the lack of clarity on the participation of local communities in the granting of HP3 as explained above, the current law also opens a wide opportunity for private parties to apply for HP3 certificates, while ignoring that local and traditional communities have capacity constraints in doing the same thing.

The granting of HP3 certificates might be expensive, as there are quite a few prerequisites that the applicants must fulfill. As corporations are closer to banks, they can get loans easily. On the other hand, local and traditional fishermen may not be as bankable as corporations and the decision-making process there may entail higher transaction costs compared to corporations.

So, there is an asymmetrical position between the players here. The weaker parties must be granted facilities due to these asymmetries and the current law does not seem to guarantee this.

The law actually accommodates existing practices by obligating HP3 holders to "respect" the adat (customary) law. Nevertheless, the language of the law reflects that the rights of traditional societies are not treated on equal footing with certification-based rights. So, there are risks of "expropriation" of the pre-existing customary rights. Adat communities with fishery practices would therefore have a legal standing before the court, as their interest is clearly affected.

Another crucial point would be anticipation of the risks of the HP3 market. As explained above, HP3 could be used as a security for loans. If the market is good, it is theoretically possible to purchase as much HP3 certificates as possible (with loans from banks) and then re-sell to another company for a profit, while the field remains neglected.

Its a huge business opportunity, Im telling you ;)


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My position on the 'Fitna' Film

Friday, April 4, 2008

Some friends and colleagues have asked my opinion on the Fitna film. For now I have no time to write a lengthy review and my stance on religious freedom has been quite clearly represented through my previous writings (see here, here and here).

So let me just state my position briefly:

We must protest but we cannot restrict.

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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.