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The "right to water" in Indonesia
2007-06-05 22:09:00
The right to water is guaranteed under Article 5 of the Water Resources Law. It is stated there that the state must guarantee the citizen's access to water. The implementation of such right is not yet clear. The elucidation of Article 5 only said:This provision shall mean that the state holds the obligation to organize various efforts to guarantee the availability of water for everyone residing within the territory of the Republic of Indonesia . The said guarantee shall become the joint responsibility of the Government and regional government, including guaranteeing access for everyone to the water source to obtain water. The extent of daily minimum basic need for water shall be determined based on the guidance to be stipulated by the Government.The Constitutional Court in its interpretation of the water law stated that Article 5, jointly with Article 16 (which stipulates that the duties and authorities of every municipalities are to to fulfill the minimum daily basic need for water...
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Water privatization, some condoning views
2007-05-20 21:56:00
My JP article on the legal risks of water privatization gets a mixed response and was quoted in blogosphere and other sites. I feel the need to bring a balancing view.What I said on that article was that privatization carries legal risks, in simpler terms, the state's controlling power toward water will significantly reduces if water services is privatized. The article did not lead to the conclusion of whether privatization should be rejected or not, it only warns the government on the risks.Is water privatization all bad?I am not an economist so I do not have the competency to argue. But here's some view:Privatization is not a panacea, but Segerfeldt shows that, when properly done, it can play a huge role in bringing safe clean drinking water to the hundreds of millions of people who still lack it. In the meantime, Segerfeldt wonders, "why anti-privatization activists do not expend as much energy on accusing governments of violating the rights of 1.1 billion people who do not hav...
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Water Privatization in Indonesia
2007-05-19 23:15:00
I wrote an op ed-piece for the JP a few days ago:Privatization that involves MNCs will cover generally three legal arenas, namely transnational, national and contractual. Each legal arena requires a different model of legal protection.In the transnational arena, governments may face parent companies and shareholders of an Indonesia n-incorporated subsidiary company in arbitrations. In typical water contracts between local water authorities and a locally incorporated company, there is always a clause that refers every dispute arising from the contract exclusively to a local jurisdiction.The problem is, MNCs can always refer to Bilateral Investment Treaty (BIT) to which Indonesia is a party and use the "umbrella clause" in the BIT to transform a problem that was originally a contractual dispute into an international investment dispute. So, the central government can be dragged into a costly international arbitration.One of the drawbacks of international arbitration is that the proceedi...
More About: Water , Riva , Atiz , Done

Is Creative Commons license applicable in Indonesia?
2007-05-16 15:44:00
I dare not to say 100 per cent "yes". If I am sitting in the judge chamber and have to decide on this matter, I think I would say "yes" and direct judicial interpretation in that favor. But unfortunatelly I am not a judge.What underlies my doubt? Well, here's what the law says:Article 45(1) The Copyright Holder shall have the right to give a license to another party based on a letter of licensing agreement to carry out the acts as referred to in Article 2.(2) Unless otherwise agreed, the scope of licence as referred to in paragraph (1) shall cover all acts as referred to in Article 2 for a period of the licensing agreement and is exercisable within the entire territory of the Republic of Indonesia .(3) Unless otherwise agreed, the implementation of acts as referred to in Article (1) and (2) shall be accompanied by the obligation to pay royalty to the Copyright Holder by the licensee.(4) The amount of royalty, which has to be paid by the licensee to the Copyright Holder shall be base...
More About: Creative , Creative Commons , Ense , Comm

Couping the Constitution, a Pakistan Way
2007-05-13 09:34:00
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 at...
More About: Constitution , The Constitution , Const , Ping

Careful with blogs!
2007-05-09 01:21:00
There was a good article from Karina Widyani in JP a few days ago. The title was "listening to the blogs". Here's a quote: Among these "questionable" contents was an article on one of the blogs where Fauzi was mentioned to have been unwilling to report the fund he allocated for the election campaigns as required by the election commission. Note, however, that this article was not written by the blog's author; it was first published by Rakyat Merdeka daily on April 12. Similarly, the other contested blog contained some articles originally published by popular news Web site detik.com. "We are going to take firm action if our wish is not respected. Stop this activity before our anger sweeps across Jakarta," the Fauzi defenders team said in its press release, without specifying what action would involve. Words are mightier than swords. This is not the first time the "attacks of the blogs" rocks. Some companies has been reported to continously losing their shares prices following their...
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Resurfacing the death penalty debate
2007-05-04 07:50:00
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 ...
More About: Debate , Death , Death penalty , The D , Penalty

The Chewbacca Defense
2007-03-14 16:00:00
I've been interested in logical fallacy lately and I am a great fan of Southpark. When I did wiki-walking, I captured this fantastic article on one of southpark's episode: Cochran: Ladies and gentlemen of this supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself! But, ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!Gerald Broflovski: Dammit!Chef: What?Gerald: He's using the Chewbacca Defense !Cochran: Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and...
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RFID in Indonesia
2007-03-12 13:08:00
I received an email alert from RFID Asia that it will open a branch in Indo nesia . This means that RFID market may grow rapidly in Indonesia. In the near future, there might be demands for regulation on the utilisation of RFID. To get a glimpse on how technology such as RFID affects privacy in the future, have a look on my JP article archived by Kerry B Collison here.ps: It was written before the "Maria Eva" scandal ;)
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Hernando de Soto on Land Title
2007-03-01 16:43:00
I came across an interesting insight from Hern ando de Soto, on his views why land reform fails:If a government does not give to everyone the impression that it is really trying to improve things, it opens the possibility for the left to protest in the name of all the discontented people. One main reason why the informal sector has not become formal is that from Indonesia to Brazil, 90 percent of the informal lands are not titled and registered. This is a generalized phenomenon in the so-called Third World. And it has many consequences.The question is: How is it that so many governments, from Suharto's in Indonesia to Fujimori's in Peru, have wanted to title these people and have not been able to do so effectively? One reason is that none of the state systems in Asia or Latin America can gather proof of informal titles. In Peru, the informals have means of proving property ownership to each other which are not the same means developed by the Spanish legal system. The in...
More About: Land , Title , Nand

Citizen Suit
2007-02-27 18:24:00
Hukumonline posted (in Bahasa) interesting articles on the emerging practice of citizen suit in Indonesia. So far the effort to get legal standing in a citizen suit has failed and the government has refused to acknowledge it as they are deemed to be an alien concept. However, the central jakarta court did finally decided to recognize plaintiffs legal standing, on the national exam case.Citi zen suit (wikipedia link) is used in anglo saxon legal system, mostly for environmental cases. Citizen can sue governmental insitutions both for their action which contravenes prevailing regulations or their omission in upholding or enacting regulation.I want to see how this develop. This may go further to appeal and supreme court level. If the supreme court say 'yes' to citizen suit, civil socities (NGOs) in Indonesia will have a better position and ease in doing their job.If you are interested in knowing how it works in US, here is a link to an SSRN paper.
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Bird flu strain: ownership or just profit?
2007-02-25 02:12:00
A colleague of mine wrote (in Bahasa) a nice piece in his blog, suggesting that the Indonesian government should create a material transfer agreement ("MTA") when handling the bird flu strain. To get an idea what a standard MTA looklike, you can click this link.News however tend to suggest that Indonesia is claiming ownerhsip over the strain. But I agree with my colleague, it doesn't seemed like Indonesia is claiming ownership. It only wants a fair treatment. Health Minister said in an interview:“WHO should have had walls to protect us as victims. It turned out to be that’s not the case and this is how it is in the world. Developing countries are always on the losing side like what happened to the AIDS and heart disease drugs,” she said.Thus, there is indeed a case of securing it through the MTA. The non exclusive nature of the MoU is a good thing, as Indonesia still can make cooperation with other pharmaceutical companies.
More About: Just , Profit , Rain , Bird Flu , Train

Regulation of the Water Sector
2007-02-22 23:20:00
Here's a good link to all regulations related to Water Sector in Indonesia. Unfortunatelly, not all is in English. If you want the english version, try searching it at the search box of this weblog.Good luck!
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KPK can no longer prossecute?
2007-02-14 16:15:00
A friend of mine told me that some people suggested to cut KPK's (Corruption Eradication Commission) authorities in the new draft law so that they will be required to hand in their case to the public prossecutor's office. In the current law, KPK has the authority to prossecute people. So far, I have obtained no documents indicating that this story is true.In my last post, I quoted a Jakarta Post article reporting that the new draft law will "delete" corruption court and future cases will be settled in public courts.
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Corruption to be tried in public court?
2007-02-13 15:42:00
Now the drafters want to try corruption in public courts?:What a shocking discourse. The team drafting a new anticorruption law is seeking to kill the three-year-old Anticorruption Court , where the enemies of graft work for a clean future. If the House of Representatives, which Transparency International Indonesia singled out in its last year's Corruption Perception Index report as the country's most corrupt institution, eventually endorses the bill, all corruption cases will be tried at a public court.The courageous non-career, ad hoc Anticorruption Court judges will have to find jobs elsewhere, because only the career judges at the public court will be licensed to prosecute. Told ya to keep an eye. Back to the stone age gentlemen...
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Water law in Indonesia
2007-02-12 15:28:00
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 Indo nesia '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 righ...
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Bird flu strain MoU signed
2007-02-08 13:28:00
Not bad, although only an MoU it could be a good start: Baxter International Inc. on Wednesday said it signed an agreement that could lead to a collaboration with Indonesia on the development of a bird flu vaccine, stirring controversy over the country's recent decision to stop sharing virus samples with the WorldHealthOrganization. It is the first such agreement Indonesia, the country with the most human fatalities from the H5N1 strain of avianinfluenza, has made with a foreign maker of vaccine. The "memorandum of understanding" with the Indonesian government provides "a framework for future discussions" that could lead to a formal supply agreement for pandemic vaccine. Baxter is already landing contracts to help countries, including the United States, stockpile dosages in the event of a pandemic.An MoU is not yet binding. I wonder what the actual agreement will like. It may be difficult to attach derivative rights to the bird flu strains for financial compensation to Indonesia. I...
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Can bird flu strains be "owned"?
2007-02-07 22:40:00
Indonesia delayed the transfer of bird flu strains to WHO after an aussie company developed a vaccine out of it:The Indonesian Government says Australian company CSL should have sought its permission to develop a bird flu vaccine using the Indonesian strain of the H5N1 virus. But news this week that the Australian pharmaceuticals company CSL had developed a vaccine against the H5N1 bird flu virus was met with alarm by Indonesian Health Minister Siti Fadillah Supari. She says Indonesia is seeking intellectual property rights over the Indonesian strain of the virus on which the vaccine is based. If the case is about some Indonesian plants or animals, I am certain that there could be some protection granted by one of intellectual property treaties currently in force -- if Indonesia is a party to the treaty. However, I don't think it is the case when virus is involved. I don't think bird flu strains per se can be subjected to IPR protection. If, on the other hand, someone decode the s...
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Jakarta flood and disaster management
2007-02-04 10:48:00
Most foreign media today says that the number of casualty for the Jakarta flood is 9. Local media however said that there are at least 20 dead. Thousands of civilians were trapped in flooded areas and need to wait for quite a long time before a rescue raft come to pick them up. But there wasn't enough raft for everyone. There should be enough rafts and boats if the armed forces were dispatched earlier to support the city police. Communications are down, many telephone lines are off as the Telecom office is flooded by water, BTS antennas are also off due to electric cut. The flood had strucked down nearly all means of transportations from railways to toll roads. I think food distribution could be the next problem, in addition to the spreading of disease. I hope the officials have a clear chain of command in managing the situation although formally the disaster management law has not come into force. Disaster management really should be a priority in the 2007 legislation program.
More About: Management , Men , Mana

(This time) Intel won its trademark claim
2007-02-02 17:55:00
Indonesian Supreme Court decided in favor of Intel Corp in a trademark dispute against a local apparel company:The Supreme Court has cancelled a local apparel maker's domestic trademark, ruling that the world's biggest chip maker was entitled to copyright protection as a well-known brand in spite of the fact that Intel Jeans products bore no resemblance to electronic chips. Well, there won't be any Intel Jeans anymore :)But its really a long way to go for Intel. Its brand is being used by quite so many companies from electronic appliances to clothings. If I am not mistaken, Intel lost its claim back in 1993 as the court suggest that intel is not a well known brand.Within 2002-2005, 131 out of 163 IPR claims is for trademark. The cost of litigation is very high, as well as the bureaucracy. If you are curious on how the bureaucracy look like, click here (in Bahasa).
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Julie Estelle on Playboy, child pornography?
2007-01-31 21:17:00
Lawyer Ari Juliano (popularly known by collegues as "Ajo") blogged about Julie Estelle's appearance in Play boy Magazine. In case you don't know the person, its that young artist playing in the movie Alexandria or something.Anyway, If she's truly 17 when the photos were made, Ajo is correct in pointing out that she is not old enough to enter into agreement with a third party. Thus, she'd had to be represented by her parents as under the civil code, the minimum age required by someone to obtain full legal capacity is 21, unless the person is married. Even under the child protection law, she is still technically a 'child', as the age for adulthood there is 18 . The question is, would her photo session with playboy amount to child pornography? Child pornography is a term not known to the child protection law. However, the law does punish anyone who economically or sexually exploited children for their or other people's benefit in Article 88. I think we should note that Article 8...
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Guide to doing business in Indonesia
2007-01-30 20:53:00
When I browsed around d Net a few days ago, I found a good paper in Lex Mundi titled "Guide to Doing Business in Indonesia ". The 54-page paper was prepared by ABNR Lawfirm in 2005. I did only a skimming and it seems to me that the content is quite comprehensive. It discusses a wide range of legal aspects related to business in Indonesia, from types of visas to Foreign Direct Investment, environmental, employment, also land related rights and Intellectual Property Rights. In its appendix, it listed some samples of BKPM forms.As to my knowledge, there was a slight change on the labor law due to Constitutional Court's decision. The BKPM forms and the negative list of investment could also be amended. You can check the latest form at BKPM's website or you can search it in the search box in the right panel of this blog.As an overall, the Guide is quite useful to get general information on doing business in Indonesia.To download the Guide, simply click here. It's free.
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Death of a notorious lawyer to be investigated
2007-01-30 09:15:00
The Jakarta Post gave a shocking news this morning: Ciputat Police chief First Insp. Prayitno found possible rope marks on Frank's neck, but officers at the scene said there was no place to tie a rope. Prayitno said the body had been taken to city-run Fatmawati Hospital, South Jakarta, for an autopsy. As a legal practitioner, Supit established Makarim&Taira S corporate financial law firm in 1980.Mr. Frank Taira was known as one of Indonesia's top lawyer. Our condolences to the families and relatives.
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How to cut red tapes
2007-01-28 17:18:00
If you go to Sunda region (that is to say, west java), you will find sour -- but very tasty -- food called tape. You should try the food, but, let's skip the culinary talks for now ;)Sarapan ekonomi suggest an easy way to boost indonesia's economy: cut the red tape. Here's what he said:But, let me offer an "easy" shortcut to Indonesia's prosperity: Cut red tapes, leave entrepreneurs alone, and let them create jobs. As I have always said, all we need to do are shredding some paper forms and closing some offices. Nothing would be easier than that.Can't agree more. I wrote in my 2005 article on how the red tape looks like in Indonesian legal system:Indonesia's legal system recognizes the hierarchy of rules ranging from the Constitution, laws and Government Regulations in lieu of Law (Perpu), followed by Implementing Regulations that consist of Government Regulations (Peraturan Pemerintah), Presidential Regulations (Perpres) and Regional Bylaws (Perda). There have been around 8,00...
More About: How To , Apes , Tapes , Red Tape

Will blogs transform the nature of legal services?
2007-01-26 19:55:00
It has been an honour that political analyst Fatih Syuhud reviewed this blog in his "blog of the week" feature. Here's a quote: Some non-law students are just reluctant to read anything to do with law because the writer uses too rigid a language which is hardly understood by non-law student... The stark substantial differences between modern people and "primitive" ones is not about the physical appearances, it's about how thirsty we are to acquire new knowledge and information, which are ups for grabs in front us. Al Afghani's blog content is one of those information that we should read regularly and joyfully to quench our thirst of knowledge just in case you are one of those modern and civilized persons. Not only that the law is difficult to understand for lay people, it is also expensive and not reliable. Am I right or am I wrong? In theory, the law is created for the people, and not the other way around. Is there any way to bring the law closer to the people?It is possible. ...
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Misunderstanding Indonesia's Legal System?
2007-01-23 12:42:00
Since corruption is still a hot issue, let's talk more of it. I came across with a blog post quoting Tim Lindsey's lecture in Unimelb. I cannot confirm if it is really his writing as the link is dead. Here's the quote:However, although the Indo nesia n legal system provides the sorts of rights and protections for the accused that might be expected in Australian courts, they are not always upheld in the same way in practice.The institutionalised bribery of the Soeharto period left its mark on the judiciary. Corruption is common in many courts around the country, partly because salaries are very low and facilities poor. As money became more persuasive than legal argument in some Indonesian courtrooms, the skills base of many judges and other law enforcement officials also plummeted.Hmmm, hear-hear. Needless to say more. Sometimes I find it futile to give reasonings and to draft neat contracts when in the end of the day, its Uncle Benjie who speaks.
More About: System , Legal , Understand

Be careful when signing a lease agreement
2007-01-21 21:36:00
A few days ago a friend of mine emailed me telling that he was in some kind of trouble after signing a lease agreement. He had paid a very large amount of money to someone for the purpose of renting a house to be turned into his office. Later it turned out that the person is not the real owner of the house. Voila! So, here's a few simple tips when you want to rent a house:Make sure you are dealing with the lawful owner of the house/land, or a person accorded with a sufficient proxy to lease the house/landCheck with the true copy of the certificate (better with the original) and make sure that they are the owners. If the land/house is an inheritance and it has not been splitted, make sure every heir/successor who receives the inheritance approves the lease. Better way: make them all sign the agreementCheck with the land register if the land is subjected to mortgageIs modification/renovation allowed? At who's expense?What happen if there is damages? Who covers the insurance?Who pays...
More About: Men , Care , Sign , When , Careful

How to set up a company in Indonesia
2007-01-21 10:59:00
The process of establishing a limited liability company is actually too complicated to be explained in a blog post, so I'll just give you a summary:Minimum Two shareholders are requiredMinimum authorized capital is IDR 20 millionYou need to reserve the Comp any 's name (trade ministry), obtain a domicile license (local authority), obtain the company tax number (tax office), and re register everything at the ministry of trade.A notary can do all those task for you, for a fee. There is no specific time period for the whole process so it depends in each case. But, if the company is a Foreign Direct Investment (FDI) Company, then there are some other procedure that must be followed such as acquiring foreign capital license from the Central Bank and BKPM licenses. For that, you might need to either hire a lawyer or use investment consultancy services.There are so many licensing services in Indo nesia , each has their own rate. Okusi associates charges 2,550 USD. Healy Consultants charge u...
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Labor Strike Procedure in Indonesia
2007-01-20 14:22:00
In essence, every dispute arising out of Industrial Relation must be settled through deliberation of the involved parties. In this regard, prior to conducting a strike, a negotitation among Labor Union and the Company is mandatory. For the purpose of legal-evidentiary formalities, a sealed notes of meeting of the above negotiation process signed by authorized representative of the Labor Union and authorized representative of the company (if it is a limited liability company, then it shall be signed by members of the board of director or any one authorized to negotiate under a proxy signed by one of the company’s Board of Directors) shall be prepared. Only after the negotiation failed can the labors perform its right to strike. Labors can perform their right to strike without getting through a process of negotiation. This can only be performed however, if the company refuses to negotiate. Decision of the Labor Minister, Kepmenakertrans No. KEP. 232/MEN/2003 Year 2003 on the Conseq...
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Can foreigners own land in Indonesia?
2007-01-19 19:11:00
This is a quite common question being asked to lawyers. The answer is "no". Under the 1945 Constitution Article 33 land and water, and the natural resources found therein, shall be controlled by the state and shall be exploited for the maximum benefit of the people. Thus, foreigners are barred from having Right of Ownership/Hak Milik (somewhat equal to the common law's freehold title) to land. But, of course there is always a way to get around it. The first way is to purchase and indirectly 'own' land through nominee agreement. This way the foreigner gives an amount of money to an Indo nesia n citizen (the "nominee") to buy a land, through a power of attorney (PoA). The PoA must clearly and specifically elaborates that the money belongs to the foreigner and that the nominee is a mere executor. It must also specify that the foreigner has the rights to enjoy and execute all rights commonly attached to the land -- including but not limited to -- lease, sale, rent, et...
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