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The New Law on Coastal Management
2008-04-15 15:30:00
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 defe...

My position on the 'Fitna' Film
2008-04-05 07:19:00
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.
More About: Film , Position

More on blasphemy law
2008-01-20 08:19:00
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 H...

CSR/GCG for utility companies
2007-12-24 10:47:00
I wrote a paper explaining why certain Good Corporate Governance (GCG) and Corporate Social Responsibility (CSR) norms needs to be practiced by utility companies. You can download the paper here.Abstract:This paper argues that utilities delivers basic services to society, a function that was previously undertaken by the state. Given the problematic nature of corporations, the prevalence of natural monopoly in utilities, the asymmetric information present in certain utility markets and the social costs that may occur due to utilities privatization, stronger government intervention in utilities might be desirable. It must however, be conducted in a manner which aligned the corporation's self-interest of profit seeking with the social cost. The inspiration for such regulation can come from the recently growing CSR and GCG norms.
More About: Companies , Utility

Safeguarding Water Contracts (peer-reviewed version)
2007-12-08 10:44:00
Abstract: The The provision of water and sewerage services has been in the public sector for thousands of years. However, the trend towards privatising these basic services has recently been growing. When dealing with Multinational Corporations (MNCs), governments face risks in the form of legal asymmetries. This paper explains the theory and practice of water privatisation in Indonesia. It analyses the legal anatomy of privatisation, from the regulatory to the contractual levels. It attempts to highlight important issues and risks that governments and other stakeholders need to focus on when dealing with privatisation. We've made some significant editing for this version. Download the full paper here.
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State and Religion relationship in Indonesian Constitution
2007-12-07 10:53:00
An excerpt from my newspaper article: Unlike in theocratic states, in Indonesia, clerics may issue a verdict (fatwa) but this verdict is not legally binding. It is important to note that the word "God" appeared many times on the Indonesian constitution. Nevertheless, unlike the UK/Greece model, Indonesian Constitution is silent with regard to recognition of a particular religion. There is no single article in our Constitution that mentions the name of a particular religion. Article 29 stipulates "the state is based on the belief in the One and Supreme God" but does not explain further -- "God according to who?" Moreover, although Indonesia "is based in the one and only god", the constitutional practices in the past allowed non-atheistic beliefs (as implemented by the Indonesian Communist Party and local beliefs such as kejawen) to grow. I therefore tend to conclude the Indonesian model sits somewhere between the German and the Greece/UK model. The Indonesian Constitution...
More About: Religion , Relationship , State

Foreigners has no right of judicial review
2007-11-20 01:42:00
A colleague of mine explained eloquently in his blog that only Indonesians -- and not foreigners -- are entitled to request judicial review to the constitutional court. This does not mean that foreigners do not have legal rights. They are guaranteed with legal rights -- as well as constitutional rights, however they do not have the formal procedural previleges to request a review.This brings me a question. Supposed foreigners are legally harmed by a provision of a law, then who would have the standing to challenge the law? Indonesians will not have such standing as they do not sustain legal injury (and not the "adressat" of the norm). This will leave the problem in a legal limbo. The laws would be left unchallenged.
More About: Review , Judicial , Foreigner , Foreigners

Jakarta's water problem
2007-10-27 01:10:00
Pfff, check this out: In my recent visit to Jakarta I found out that things are worse than I had envisaged. What I have feared has become reality. Lands in northern parts of Jakarta have subsided. Jakarta bypass has subsided by 50 centimeters since it was laid. The deep wells in Jakarta have to go deeper and deeper to produce water, and their output has been dropping off with time and many wells have been producing undrinkable water. Seawater has infiltrated as far as 7.5 kilometers from the coastline into the land and corrupted the groundwater such that it has become undrinkable. Hopefully their mitigation plan works.
More About: Water , Problem

Where is the "wealth of nations"? Answer: Rule of Law
2007-10-07 03:39:00
An interesting story from Reason Magazine: A Mexican migrant to the U.S. is five times more productive than one who stays home. Why is that? The answer is not the obvious one: This country has more machinery or tools or natural resources. Instead, according to some remarkable but largely ignored research—by the World Bank, of all places—it is because the average American has access to over $418,000 in intangible wealth, while the stay-at-home Mexican's intangible wealth is just $34,000.But what is intangible wealth, and how on earth is it measured?...the World Bank finds, "Human capital and the value of institutions (as measured by rule of law) constitute the largest share of wealth in virtually all countries." According to their regression analyses, for example, the rule of law explains 57 percent of countries' intangible capital. Education accounts for 36 percent.Average per capita wealth in OECD countries is $440,000, consisting of $10,000 in natural capital, $76,000 ...
More About: Wealth , Answer , Nations , Rule , Rule of Law

Concession markets in Indonesia
2007-09-10 11:46:00
Here's a link to an OECD article on the role of KPPU in supervising concession markets in Indonesia and other set of regulatory framework. This article only discusses the peripherals, but is nevertheless not bad as a start.Download here.
More About: Markets , Done

Poor water infrastructure in Kupang?
2007-08-28 13:53:00
Have a look at this reader's comment on the Jakarta Post 28/08: Money from the water budget seems to be spent improperly every year. Kupang does not have even the simplest water treatment plant, while poor maintenance has caused the deterioration of old PDAM infrastructure for years. The result is that people have to buy water from tanker trucks that has been pumped from highly polluted rivers and wells. Several tests have shown this water is not fit for human consumption. But it's still being sold by the Kupang city administration.
More About: Infrastructure , Water , Poor

Living with the Other Fishes
2007-08-27 09:22:00
Finally I could meet Mr. P yesterday, after getting his rushed phone at the mid of this week. Currently, he dedicates his life to a mid-size law firm in Jakarta which hold an affiliation with the south-east law firm and America continent law firm.Yesterday’s appointment was promised to him in order to clarify an important case. The case was, Ms. Z his boss, a foreign citizen got panic and little bit shocked with the news that appeared in the Jakarta Post dated 21 August 2007 with the title "lawyers meet to discuss roles in global arena". Under the news, president of the Indonesian Advocates Association (“Peradi”), Otto Hasibuan commented some following issues: a. the Ministry of Law and Human Rights as the authority to issue work permits for foreign lawyer shall send report on foreign lawyers which has received the working permits in Indonesia to Peradi; b. Peradi suspected that in addition to 37 registered foreign lawyers working in Indonesia, there are ...
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Longing for Corporate Social Responsibility's (CSR) implementing regulation
2007-08-22 17:30:00
Now that corporate social responsibility (CSR) is obligated under the new company law (for companies which its core business is Natural Resources or in one way or another related to the environment), business community in Indonesia awaits its implementing regulation. There are still some confusion about the nature of CSR obligation. For example, how should "Natural Resources or in one way or another related to the environment"be defined?Noke Kiroyan explained this complexities on his article:Almost as an afterthought, in verbal explanations by lawmakers, those industries producing hazardous waste such as hospitals are also included. What about state-owned and other hospitals that are not incorporated as limited liability companies, as the law regulates this legal form only?Everyone is entitled to make up his or her own definition, but why go to the trouble of doing comparative studies outside the country if we end up going our own merry way?Article 74(2) of the Company law specifi...
More About: Social , Regulation , Corporate , Longing , Rate

Introducing a co-blogger
2007-08-21 15:28:00
Dear friends, relatives, neighbors, readers...I'd like to introduce you to a new co-blogger from Jakarta's "legal underworld". He told me that he's going to blog some -- uhm -- sensitive issues on Indonesia's law enforcement. I know that you are longing to know what this person will write. So, without no further waste of time, let me introduce indolawreport's co-blogger,Mr. C.
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Water war is a class war
2007-08-20 16:23:00
That one is column at The Globalist. The author wrote:For some, water is effectively granted as a right, provided at low cost by the state. For many others — usually those who can least afford it — it is treated as a commodity that must be bought. Access to water is in fact much more closely tied to social class than to climate. In this sense, the conflicts arising from water scarcity are class wars.He also explained that urbanization will be the main cause for water conflict:First, there are real engineering challenges: the scale and pace of contemporary urbanization is much greater than in the past. And many slums are growing in places vulnerable to catastrophic change: floodplains or steep hillsides. Second, because urbanization today is in many places occurring without economic growth, governments in the Global South often lack the resources to undertake such large infrastructure projects and are dependent on global markets for financing. But the global political climate to...
More About: Water , Class

"Your" water, "their" tribunal. BITs in water privatizations
2007-08-20 12:01:00
You don't believe me? There is more than one case, really. I want to get back to that Tanzanian water privatization case, as reported by the Guardian:Lawyers for Tanzania's government, whose participation in such a tribunal process is among the terms of a bilateral investment treaty signed with Britain in 1994, argue that Biwater failed in its contractual obligations, performing worse than its inefficient state-owned predecessor. If the government was to meet its citizens' need for safe water, it too had no choice, they claim, but to terminate the City Water arrangement just 22 months into what was meant to be a 10-year contract.Now, you think the government can do anything once such dispute arises?Despite the secrecy of proceedings - the tribunal is closed to the public, and Biwater sought and was granted a ruling that both parties refrain from speaking publicly to the media during the week-long hearing that finally began in The Hague in April - a host of interested parties will...
More About: Tribu , Riva , Atiz , Bits

Company Law to be Judicially Reviewed
2007-08-19 10:16:00
Still an unconfirmed news (will be confirmed if they log their case on the Court's registrar). Chairman of Apindo Sofjan Wanandi planned to submit a Judicial Review of the newly enacted Company Law to the Constitutional Court. He argued (link in Bahasa) that the Merger Rules on the new law -- which obligates companies to announce its merger decision prior to general meeting of shareholders-- was unfair.I still don't know how it can violate the Constitution. Article 33 of the Constitution expressed that the economy is built upon a 'common endeavour' based on familial principles. I suppose, the families here could mean the workers too.
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What 'natural resources'? CSR clause in the new Company Law
2007-08-19 01:51:00
Just to start the conversation, there's a nice article from CSR Asia discussing the controversy surrounding the Corporate Social Responsibility (CSR) clause under the newly enacted Company Law. Here's a snippet:Indonesian company law states that companies with an impact on natural resources must implement CSR which is to be budgeted for as a cost. Beyond that we await further regulations – both to define CSR in this context and to determine how it should be implemented and to clarify which companies are actually affected. Currently the law applies to companies ‘engaged in natural resources or those in business in connection with natural resources’, but it isn’t clear what is covered by the term ‘natural resources’.Click here to read.
More About: Resources , Natural , Natural Resources , Natur

Some note on Indonesian Investment Law
2007-08-19 01:03:00
FDI.net hosted an article on the newly amended Investment Law which may be good as a kickstart. You can download it here.Note : I have not throughly read the content myself. In any event, no guarantee on its accuracy.
More About: Indonesian , Done , Some

The Tanzania Water Privatization Problem
2007-08-18 18:31:00
Guardian issued an interesting article elaborating the Dar-es-Salam Water Privatization problem:At 11.30am on June 1 2005, three British expatriates were detained by the police in Tanz ania . Cliff Stone, Michael Livermore and Roger Harrington were the senior managers at City Water, a consortium responsible for managing Dar es Salaam's water supply. After being held for several hours, the men were served with notices describing them as "undesirable immigrants" and told to leave the country.I do not know the privatization scheme of Dar-es-Salam water service, but it appears to me that they are using a leasing scheme, where the authority retains ownership of the infrastructure (plus doing some administrative work) and the private operator runs the water treatment, extend network, and in this case, do the billing.There is one contractual issue that I would like to highlight in this Dar-es-Salam case:City Water repeatedly complained to the Tanzanian water ministry that its bid was based ...
More About: Problem , Riva

Tragedy of the commons in water
2007-07-27 13:24:00
BBC had an interesting article on the debate as to whether market forces would be able to manage water:The editor of the book, Kendra Okonski, a director of the UK-based International Policy Network, says the solution is to give water a market value. "If we view water as a global common good, it means that we collectively own it and no one has the responsibility to look after it. "But if we manage it with markets and underlying institutions - such as property rights and the rule of law - then people are much more likely to look after the water and use it more effectively," she told the BBC News website.Not looking after (and eventually) destroying resources is something that Garret Hardin termed as "Tragedy of the commons". While bringing value to water (through cost recovery) is important -- as it encourages people to conserve, denying access to water because a person is unable to pay is bad. Thus, a subsidy or other mechanisms must be created, and that is the role of the state.
More About: Water , Mons

Safeguarding a water contract
2007-07-23 18:49:00
If you are representing a municipality or a central government, and you have to deal with water MNCs in concluding an agreement, what will you do? I wrote a paper on this issue for a conference held by the IELRC in Geneva, last April. Here's the abstract:Due to financial and technological reasons, water undertakings are often being conducted by large scale Multi National Corporations (MNC). Governments often positioned Regional Authorities as a regulator to these MNCs, and at the same time engaged in water contracts with them through State Owned Enterprise (SOE). However, the relationship between Water MNC and Governments is asymmetrical as MNCs can move their assets overnight, transfer their ownership to third parties, seek various means of redress through bilateral, regional or international investment treaties and avoid confiscation by reallocating their assets. These are often done by hiding behind multiple jurisdictions enjoyed either by their parent companies, subsidiaries or...
More About: Contract

Indonesia needs a good squatting law?
2007-07-22 15:20:00
I have just watched Robert Neuwirth's presentation at the 2005 TED Talk. He explained that in 2030, there will be 2 billion squatters, or one in every people in the planet is a squatter. In his presentation, he explained some squatter laws in several countries, for example the 24-hour rule in Turkey which established that if a person manages to erect a building in 24 hours, they cannot be evicted without court orders. What Neuwirth has elaborated is enermously significant, my latest newspaper article also discussed this issue:In a recent report, the United Nations Family Planning Agency (UNFPA) predicted half the world's population would be living in cities by next year, with the figure expected to grow.This presents challenges for more effective land use, transportation and the fulfillment of minimum daily subsistence. Cities that fail to meet these challenges will become "failed cities", marked by the rise of megaslums.In addition to the focus towards FEW (Food-Energy-Water) law...
More About: Indonesia , Good , Done , Needs , Squat

Click-wrap agreement unenforceable in Secondlife
2007-07-19 16:28:00
Last May I had an interesting discussions with Priyadi and others on the enforceability of Creative Commons license in Indonesia. In that previous post, I mentioned the example of Comb v PayPal (US District Court of San Jose), in which the Court find the agreement unenforceable.Recently, in the case of Marc Bragg v Linden, the Court also finds Secondlife 's wraps agreement unenforceable:Linden presents the TOS on a take-it-or-leave-it basis. A potential participant can either click “assent” to the TOS, and then gain entrance to Second Life’s virtual world, or refuse assent and be denied access. Linden also clearly has superior bargaining strength over Bragg. Although Bragg is an experienced attorney, who believes he is expert enough to comment on numerous industry standards and the ‘rights’ or participants in virtual worlds, … he was never presented with an opportunity to use his experience and lawyering skills to negotiate terms different from the TOS that Linden offere...
More About: Click , Econ , Agreement , Wrap

The right to water must be explicitly stated in the Constitution
2007-07-10 08:23:00
JP has just published my Article on the right to water today:Access to water is a fundamental human rightMohamad Mova Al 'Afghani, JakartaEnough has been said about the depletion of our supply of fresh water from industrialization, deforestation and climate change. Now, the rise of megacities is also complicating the problem.In a recent report, the United Nations Family Planning Agency (UNFPA) predicted half the world's population would be living in cities by next year, with the figure expected to grow.This presents challenges for more effective land use, transportation and the fulfillment of minimum daily subsistence. Cities that fail to meet these challenges will become "failed cities", marked by the rise of megaslums.The problem with water is that it is complicated by the fact that policy in this area is highly intertwined with other sectors. More food requires fine agriculture, which can also mean more water. More clothing requires industrialization, which can involve the use ...
More About: Constitution , Water , The Constitution , Const , Stat

The New Negative List of Investment
2007-07-06 08:10:00
Jakarta Post issued an editorial discussing the new investment's negative list: It's true these sectors -- telecommunications and insurance -- became more restrictive, with foreign ownership in telecommunication companies (telcos) now restricted to 65 percent for mobile services and 49 percent for fixed network, with the insurance industry at 80 percent. The good news is however the new regulation is not retroactive so those foreign investors should rest assured their controlling ownership in those companies would not be contested. In total, there are 11 sectors becoming more restrictive While it's true some sectors would become more restrictive for foreign investors, more and more sectors are widened further to foreign ownership, including oil and gas exploration, the pharmaceutical industry and construction services. Some sectors, previously partially or wholly closed, are now opened to foreign investment, including health and education -- two of the most important sectors fo...
More About: Investment , List , Negative

Why are poor countries, poor? Corruption
2007-07-02 10:12:00
Reason magazine published a good article explaining why poor countries will remain poor, taking the case of Cameroon:More important, why can't the Cameroonian people seem to do anything about it? Couldn't Cameroonian communities improve their schools? Wouldn't the benefits easily outweigh the costs? Couldn't Cameroonian businessmen build factories, license technology, seek foreign partners, and make a fortune? Evidently not. Mancur Olson showed that kleptocracy at the top stunts the growth of poor countries. Having a thief for president doesn't necessarily spell doom; the president might prefer to boost the economy and then take a slice of a bigger pie. But in general, looting will be widespread either because the dictator is not confident of his tenure or because he needs to allow others to steal in order to keep their support. The rot starts with government, but it afflicts the entire society. There's no point investing in a business because the government will not prote...
More About: Corruption , Countries , Poor , Trie

EU sanction on Indonesian airlines -- some legal obligations
2007-06-29 00:56:00
I forgot to mention one legal obligation that can be derived from the sanction: a travel agent operating in EU territory would be obliged to inform the passengers if they are booking non-favoured airlines. Imagine what the effect would be for Indonesian tourism industry.
More About: Airlines , Legal , Line , Lines

Indonesian airlines 'punished' by the EU
2007-06-28 23:40:00
European Union is a standard-freak, we all know that. They regulate everything from the amount of detergents allowed to be spilled into sewerage to the position of labels in wine bottles. These regulations are good, they ensure safety and consumer protection, for EU citizens.But hey, the EU also has a substantial "market power", they can also regulate foreign private parties to comply with their laws. If you want to land on our airports, make sure you comply with our safety standards, otherwise, get the hell outta here. Nice:All Indonesian airlines including national carrier Garuda are to be banned from the European Union. "European citizens should avoid flying with these carriers," an EU official said. "They are really unsafe."The new list, decided upon following advice from an EU air safety committee, is expected to be formalised within a week. Garuda flew to Rome and Amsterdam until 2005, and is planning to resume services to Amsterdam in 2008.The idea or regulating things based ...
More About: Airlines , Line , Lines , Airline

Your Water Law Resources
2007-06-17 17:17:00
Lopez Ostra, ECHR in Water edit / delete to human+rights water+law environmental+law echr ... 4 hours ago Non-revenue water - Wikipedia, the free encyclopedia edit / delete Non revenue water (NRW) is water that has been produced and is “lost” before it reaches the customer. Losses can be real losses (through leaks, sometimes also referred to as physical losses) or apparent losses(for example through theft or metering ina to water+law economy ... 2 days ago lawbibliography_righttowater.pdf (application/pdf Object) edit / delete to bibliography human+rights water+law ... on june 09 Water as a Human Right edit / delete There have been both express and implied references to a right to water in public international law. Some of the instruments included in the following analysis are traditional human rights instruments. Instruments arising in the humanitarian law arena, as to international+law human+rights water+law ... on june 09 Right to water a...
More About: Resources , Sources