May 24, 2010 · 3:23 pm

Sistem Hukum tanpa Kepercayaan

This article was published by Koran Tempo on 24 May 2010.

(Indonesian version of  “Trust Is One Thing Missing In Our Legal System”)

http://www.korantempo.com/korantempo/koran/2010/05/24/Opini/krn.20100524.201279.id.html

Akhir-akhir ini, masyarakat kita disuguhi berita tentang bobroknya penegakan hukum di Indonesia. Mulai kasus Gayus Tambunan, rekayasa berita acara pemeriksaan terhadap pemulung bernama Chairul, sampai aksi “perang bintang” di kepolisian dalam menindak praktek mafia hukum. Seketika, masyarakat menjadi marah akan kondisi sistem hukum kita yang karut-marut. Prihatin dengan kondisi tersebut, LSM Indonesia Corruption Watch pada April lalu menyatakan bahwa sistem hukum Indonesia sedang dalam “kondisi darurat” akibat merebaknya praktek mafia hukum.

Padahal, sebagaimana dikatakan John Locke, filsuf Inggris, dalam Social Contract Theory bahwa suatu sistem hukum diciptakan oleh otoritas pemerintah atas dasar kepercayaan masyarakat, dengan harapan bahwa melalui kedaulatan pemerintah (<I>government sovereignty<I>), hak-hak mereka dapat dilindungi dan, dengan demikian, pemerintah menciptakan keteraturan dalam kehidupan berbangsa serta bernegara. Rusaknya kepercayaan masyarakat terhadap sistem hukum otomatis akan membuat tujuan pemerintah dalam menciptakan sistem hukum tidak akan pernah tercapai.

Hilang kepercayaan

Rusaknya tatanan sistem hukum memiliki akibat yang sangat besar bagi kehidupan bangsa kita. Bukan hanya memberikan kesempatan bagi orang seperti Gayus untuk menggelapkan uang pembayar pajak atau menjadikan orang kecil seperti Chairul sebagai korban, tapi juga telah membuat teroris di negara ini leluasa beraksi dengan memberikan kesempatan mereka membuat identitas palsu dan membeli senjata untuk digunakan dalam aksi terorisme.
Begitu juga halnya dengan pemberian kesempatan bagi kelompok masyarakat mayoritas untuk menekan kelompok minoritas. Saya rasa bangsa kita sudah cukup banyak mendapat pelajaran dari rusaknya tatanan sistem hukum. Contoh-contoh nyata tersebut jelas menunjukkan bahwa ada yang salah dengan sistem hukum yang sudah kita bangun. Masyarakat menjadi semakin tidak percaya terhadap sistem hukum yang mestinya melindungi mereka.

Phillip Howard, aktivis hukum Amerika Serikat, pendiri Common Good, dalam pidatonya yang berjudul “How to Fix a Broken Legal System” mengatakan, apabila terdapat kondisi di mana tatanan sistem hukum yang dijalankan oleh pemerintah dalam arti luas tidak lagi dipercaya oleh masyarakat, akan terjadi yang dinamakan “universal distrust of the system”. Kondisi ini memiliki ciri-ciri di mana hukum tidak lagi dipandang sebagai “human institution”, yang dapat memberikan rasa perlindungan hak-hak mereka sebagai warga negara. Karena itu, harus segera diambil langkah-langkah untuk melakukan pengembalian kepercayaan (restore the trust).

Saya sangat sependapat dengan Howard, karena rasa kepercayaan kepada suatu sistem hukum yang diciptakan oleh pemerintah akan menjadikan hukum itu sebagai alat kontrol yang paling efektif dalam kehidupan berbangsa dan bernegara. Masyarakat menaruh harapan besar pada sistem hukum.

Krisis
Pemerintah sebenarnya sudah menyadari betul akan hilangnya kepercayaan masyarakat terhadap sistem hukum. Kemudian, sebagai solusi, mulailah dibentuk lembaga-lembaga ekstra yudisial, seperti Satuan Tugas Pemberantasan Mafia Hukum (Satgas Mafia Hukum), kemudian forum penegak hukum antara Mahkamah Agung, Kementerian Hukum dan Hak Asasi Manusia, Kejaksaan Agung, dan Kepolisian Nasional RI (Mahkumjakpol) untuk mulai menumbuhkan rasa kepercayaan masyarakat terhadap sistem hukum kita.

Dilihat dari faktanya, Satgas hanya bergerak pada kasus per kasus dan tidak memiliki kewenangan untuk eksekusi. Lembaga yang mirip, yaitu Mahkumjakpol, juga sudah pernah dibentuk pada era Presiden Soeharto. Mengutip pendapat pakar hukum Luhut Pangaribuan, pembentukan forum penegak hukum hanya menunjukkan bahwa hukum seolah-olah dapat dinegosiasikan.

Solusi semacam itu tidak lebih hanya menempelkan “plester” pada luka yang diibaratkan sebagai ketidakpercayaan masyarakat. Tentunya, lukanya tidak akan pernah sembuh betul karena hanya “ditutupi”. Kita butuh lebih dari sekadar “penutup luka”. Yang kita butuhkan adalah reformasi total sektor yudisial. Semakin jelas, apa yang selama ini hilang adalah kepercayaan terhadap sistem hukum kita sendiri, yang masih jauh dari harapan masyarakat.
Bagaimana sekarang kita membangun kembali kepercayaan masyarakat terhadap sistem hukum? Dan dari mana kita harus mulai membangun? Membangun kepercayaan tidak mungkin dilakukan dalam waktu singkat dan tidak bisa dilakukan dengan sekadar “menutupi luka”. Seribu tahun pun bisa tidak cukup kalau kita tidak mengerahkan seluruh daya upaya yang ada.

Segala bentuk mafia hukum harus diberantas dan birokrasi yang berbelit-belit dalam bidang hukum haruslah disederhanakan untuk menutup kemungkinan praktek-praktek yang korup. Komitmen penuh pemerintah dalam arti luas sangatlah dibutuhkan. Kemudian aparat penegak hukum juga harus terlebih dulu ditertibkan. Budaya korupsi yang sudah mendarah daging harus diberantas sejak dini melalui sistem pendidikan, perekrutan, juga sistem remunerasi yang baik.

Fungsi-fungsi pengawasan terhadap penegak hukum memegang peranan penting. Komisi-komisi pengawasan, seperti Komisi Yudisial untuk hakim, Komisi Kepolisian Nasional untuk polisi, dan Komisi Kejaksaan haruslah diperkuat. Begitu juga dengan advokat, yang sampai sekarang masih sibuk bertengkar untuk urusan kekuasaan masing-masing.

Langkah merevisi undang-undang kita yang masih bertentangan dengan nilai-nilai hak asasi manusia, yang merupakan peninggalan kolonial dan tidak sesuai dengan perkembangan masyarakat baru, terasa bermanfaat apabila sudah ada kepercayaan dalam pembangunan sistem hukum. Apabila masyarakat percaya kepada sistem hukum yang ada, masyarakat dengan sendirinya akan dengan senang hati mematuhi hukum yang dibuat oleh pemerintah, karena harapan mereka ada di situ. Mereka percaya, pemerintah akan melindungi hak-hak mereka sebagai warga negara dan tidak menyalahgunakan kepercayaan yang diberikan.
Pada akhirnya, kita tidak lagi memerlukan lembaga-lembaga ekstra, seperti Satgas, Mahkumjakpol, juga Komisi Pemberantasan Korupsi. Setelah itu, barulah kita siap menghadapi tantangan zaman yang dihadapi bangsa ini, dan mewujudkan cita-cita sebagai bangsa yang sejahtera.

Leave a comment

Filed under Uncategorized

May 17, 2010 · 7:22 am

Trust Is One Thing Missing in Indonesia’s Legal System

Reading headlines about law enforcement in Indonesia worries me. Starting from the case of the tax official Gayus Tambunan who was allegedly involved in embezzling billions of rupiah, then followed by the news of the alleged case broker Syahril Djohan and then the case that drew a lot of sympathy, where Chairul, a beggar, was framed in a criminal scene regarding to marijuana possession. Luckily for Chairul, the Central Jakarta district court acquitted him based on fake dossier by the police.

Confirming the country’s worst fear, as a response to the rampant violation of law, in April, the Non Governmental Organization, Indonesian Corruption Watch (ICW) declared that the Indonesian Judicial System is now facing an emergency situation. Furthermore, in December 2008, Transparansi Internasional Indonesia (TII) conducted a survey which concluded that the Indonesian law enforcement is seen as the most corrupt institution in the country.

All of this risks a significant decrease in trust in our nation’s legal system. Philosopher John Locke, an English wrote in his Social Contract theory that legal system is established through a government’s authority with the mandate of the people as a basis. The people surrender themselves to their governments in the hopes that a sovereign government can create a legal system which can protect the rights of the people and create order in their everyday lives.

What are the consequences if a legal system no longer runs on its primary requirement which is trust?

When the legal system is no longer functioning as it should, it should no longer be a surprise when certain people no longer feel the need to comply with what is written in statutes.

Tax payers might be reluctant to pay taxes in fear that the taxes that they have paid are pocketed by government officials and not used to build their country.

In Indonesia, even a lower ranked tax official, such as Gayus had the guts to embezzle billions of rupiahs. The police didn’t have any reservations in framing Chairul, and rampant judicial mafia practice occurs in everyday life. This is all because these people no longer believe that the legal system will work and serve for them. They no longer trust the legal system to exist. An even scarier thought, is the fact on how easy it is to falsify documents giving the opportunity for terrorists to not only harbor in Indonesia but to also have access to weapons.

Attorney Philip Howard, the founder of US group Common Good, referred to this situation as a “universal distrust of the system” where law is no longer viewed as a “human institution” that contributes to humanity.

He expressly pointed out that solution for problems such as these, is to “restore the trust” of the people in the legal system because the trust in law would result ini greater control on human behavior. I agree with his point.

I believe the government lacks awareness of a “universal distrust” situation. It has merely established an extra instruments such as the Judicial Mafia Task Force and the Legal Law Enforcers Forum between the Supreme Court, Law and Human Rights Ministry, Procesutor and the National Police (Mahkumjakpol) to ensure the legal system works properly and equally serve the Indonesian people.

But are these the solutions we need?

In practice, the Judicial Mafia Task Force only works on a case per case basis. Legal expert Luhut Pangaribuan also stated that the establishment of the law enforcers forum, shows that the law can be negotiated. These quick fixes are equivalent to a band-aid on a wound of distrust. We need more than quick fixes. We need a massive overhaul. Building trust does not happen overnight.

The first step to rebuild the trust must begin from the law enforcers. The above should be followed by strengthening all law enforcer supervision agencies. The Judicial Commission (KY) as a judicial watchdog is still arguably toothless. The National Police Commission (Kompolnas) and the Prosecutor Commission (Komisi Kejaksaan) are still far from their expected goals. Moreover, nowadays lawyers are too busy fighting for their own personal interests.

Therefore, we need the government’s (in a broad sense) effort as a holder of the authority to fix the broken legal system and begin to build the trust rather than providing a “quick fix” solution.

One important point that is so often brought up is the need to reconsider and revise laws that contradict human rights, laws that are outdated and laws that are not in line with the development of society. Such can occur only if there are good and competent law makers. That is why I believe that amending and revising the law will not be the only answer without any trust as its foundation.

After the public sees that the law enforcement can be upheld and equally serve the people, the trust will slowly begin within the community, community will then begin to internalize the law.  As a direct result, legal order in our every day lives can be established.

When the time comes, we no longer need the judicial mafia task force, the legal enforcers forum and the extraordinary legal enforcers such as Corruption Eradication Commission (KPK).

What we need now is clear. We must build a legal system that contains trust as the essential condition. As a payback I believe people will feel free to trust and obey our legal system. Therefore, were ready to face the challenges as a developed nation who dreamed of becoming a wealthy nation.

2 Comments

Filed under Uncategorized

March 26, 2010 · 10:48 am

Is there evidence of evil intentions?

President Susilo Bambang Yudhoyono said on his speech following the House of Representatives recommendations over the century bank bailout that the bailout policy was the right choice and justifiable. The president said that the decision was taken at the height of the global financial crisis in late 2008 when a quick response had been needed and therefore they should not be subject to criminal charges.

Even the president himself backed his two top aides in a televised speech to the nation by saying Boediono and Sri Mulyani deserved thanks for “outstanding service” in averting a banking crisis. “Indonesia was lucky to have had Sri Mulyani and Boediono in charge when the global financial crisis hit, as both have “spotless track records in terms of competence, credibility, and personal integrity.” He said.

It would be interesting to highlight the president’s statement.

The message from the president is clear: Is it fair that decision makers be subjected to ridicule, shame and even criminal charges when they had the country’s best interest at heart ? The House’s answers might yet result in government’s ability to deliver much-needed policies in the longer term.

Nevertheless, the House of Representatives has chosen to ridicule the Bank Century bailout policy as it had covered up irregularities, violations of banking regulations and criminal laws such as corruption.

Therefore, the decision according to House inquiries committee reccomendations, the bailout decision could be the subject of criminal charges.

Based on doctrine from common law, the ingredient that must be present for there to be  the criminal charges is the“Mens rea” which is translated from the Latin means “guilty mind”. The use of ”Mens Rea” shows that prerequisite the subject of criminal charges related to state of mind.

The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind which can be translated as  “evil intention”. Actus non facit reum nisi mens sit rea which means “the act does not make a person guilty unless the mind be also guilty.

Mens rea or the “evil intention” is the mental element that produces criminal liability when combined with “Actus Reus” or can be translated as “guilty act” as a physical element. The word “evil intention” tells what kind of mental state an accused must have to fulfill the prerequisite of the criminal charges.

A fundamental principle of criminal charges is that a crime consists of both a mental and a physical element. Sometimes a law creates criminal liabilities for the commission or omission of a particular act without designating a mens rea. These are called strict liability.

Possibilities that decision to be criminalized still exist. It does not mean that the decision can not be the subject of criminal charges. Prof Hikmahanto Juwana, law professor from University Of Indonesia, once said should the decisions be deemed as a criminal act, the enactment of those decisions must comprised of mens rea or evil intentions behind those decisions.

Once the evil intention on the accusation can not be fulfilled, it could be the reason for exemption from the criminal charges liabilities (schuldduitsluitingsgrond). We generally do not punish people for criminal act if they do something that they could not control.

Our Anti Corruption law is defined by statutes that contain a word and phrase indicating the mens rea requirement that require that a person act knowingly, purposely, or recklessly.

Therefore, the subject of corruption charges requires a mens rea or “evil intention”.

Given that ideas, once again, it would be interesting to ask about Boediono, Sri Mulyani  and officials from KSSK, BI, LPS for their mens rea or “evil intention” behind their decision to rescue troubled Bank Century and its subsequent management of bailout funds, which folded to more than $700 million.

There are deep differences between wrongdoing and delictual action (criminal action).  When the “evil intention” behind the enactment of decision is not fulfilled, it would be merely administrative wrongdoing.

The administratively wrongdoing can not be the subject of criminal charges. If there are administrative mistakes and deviations of the bailout policy, it is the domain of state administration law, and the sanction is merely administrative.

The debate about criminalization of decision has mirrored a deep divide in our nation following the bailout scandal. Is there any so-called “evil intention” behind the disbursement which folds ten times from the original estimate? Are there any criminal acts involved behind the enactment of decision?

President said the decision over century case should not be subject to criminal charges. On the contrary, the decision taken by the House’s plenary where it chose Option C stated that there were criminal violations in the extension of the Bank Century bailout amounting to $700 million.

However, according to our distribution  of power governance system, it is not the president and parliament business to judge over bailout decision.  The House’s right to investigate (hak angket) is not the “trial” for deciding the “evil intention” behind the enactment of decision.

The “idea” of the house’s special committee is to prove the “evil intention” behind the bailout decision. . Those “evil intention” are allegations that there were flows of funds from the bailout disbursement to a certain political party for election campaign.

Moreover, some lawmakers were confidently believe about the “evil intention” occurrence behind the bailout policy. Starting from the recording of a conservation between Sri Mulyani and the disgraced century bank former owner, Robert Tantular at the meeting to  the allegation that there were flow of funds to certain politician.

Those allegations were never proved so it turns to “a political idol contest” sessions by posing “unsubstantial questions” apparently just to ensure that they would appear on live television. Based on survey conducted by the chamber of public research on 19-21 Febuary 2010, it reveals 52.5 percent of respondents view that House Inquiry Committee work only for political interest, while only 34.2 percent view that the lawmakers work for the nation’s sake.

But still, despite the House had failed to prove their allegations of evil intention, 325 members of House of Representatives still insist that the government’s decisions to inject the bailout was illegal and there is indication of corruption.

Is it appropriate that the clashes of opinion between the term of “systemic” and “non-systemic threat” as a form of criminal act ? Despite the fact that after the bailout policy was taken, today our state budget is one of the best in the world and one of the best-growing countries who can survive from global crisis.

Although the House ruling isn’t legally binding, the fact that some lawmakers threatened to withhold funding for the state antigraft body if it failed to quickly follow up their recommendations can be considered as a” threat” to justice. The “threats” are not only for the antigraft body, but also for the finance minister. Some lawmakers threatened to boycott Finance Minister Sri Mulyani Indrawati’s appearance at the House of Representatives.

Replying to the house The state antigraft agency has said that they have to abide the principle of legal proof in the criminal process and therefore they need to collect enough pieces of evidence. They would not depend on the findings of the House committee recommendations because the House’s reccomendation lacked compelling evidence and would be difficult to follow up.

Afterall, who has the “evil intention” ? You decide.

Leave a comment

Filed under 1

February 10, 2010 · 9:41 am

In the Rush to Free Trade, Don’t Put Consumers at Risk

this article was published by Jakarta Globe :

http://www.thejakartaglobe.com/opinion/in-the-rush-to-free-trade-dont-put-consumers-at-risk/357694

ACFTA will encompass a total of 10 economic regions with 1.7 billion consumers, with a total annual trade volume of approximately $1.23 trillion and a combined gross domestic product of close to 6 trillion U.S. dollars. One can say that the ACFTA is the world’s largest trading bloc in terms of the population covered and the third largest in terms of trading volume.

There are numerous reactions about ACFTA. Some people agree that the implementation of ACFTA would adversely impact Indonesia’s manufacturing and trade performance. Those who are against ACFTA claimed that the free trade agreement may potentially hinder the small & medium businesses, causing millions of labor at risk to be laid off. In short, they are saying that ACFTA will hamper the national economy.  Those who are for it argues that, we cannot avoid free trade, especially, because we have signed the ACFTA agreement in 2002. The signing obliges us to follow the terms of that agreement.

However, given how Indonesia’s economy now is different from how it used to be in 2002, a possible recalculation of the impacts of the ACFTA and not to mention the amount of national pressure against it, Indonesia is seeking to re-negotiate the rates of at least 455 tariff lines, which have the potential to weaken its domestic industries.

The impact of the establishment of ACFTA is very broad. The visible ones are the impacts it is going to have on the flow non-oil imports from China to Indonesia and the loss that small industries in Indonesia are going to suffer. Arguments on that issue or pertaining to it are ubiquitous. What is often near sighted is the fate of the consumers. One might argue that opening a market up can stimulate competition and thus benefit the consumers. But is that always the case?

I believe that consumers are the real “object” of the free trade agreement. They are the ones that will face a market that is overflowed with Chinese products. This was already the case even before the ACFTA came into force. There are two perspectives in which we can view this condition. First, the agreement could benefit the consumers because they will have more options in choosing which product to buy, but, on the other hand, it could be viewed as a threat because there is the likely possibility for products that have not been tested appropriately  are sold freely in the market.

Even though ACFTA has the ASEAN Coordinating Committee on Standard and Quality (ACCSQ) that regulates the standardization of goods for consumption, it is no secret that China are having difficulties in integrating into their legal system the policy that consumers merit special protection. Case in point; recently, the efforts of Wang Hai, a prominent well-known consumer protection advocate have been curtailed by a variety of legal actions around China that sought to limit Wang’s status because of his efforts that sought out for products and then sued the offending manufacturers and retailers.

Further, back in September 2008, The Indonesian Food and Drugs Monitoring Agency (BPOM) found the poisonous ingredient, melamine, in 28 dairy-based products from China. In that same year, BPOM also banned cosmetic products made by China brands. The cosmetic products were banned after being found to containhazardous substances such as mercury, retinoic acid, hydroquinone and diethyl glycol.

There are also other cases, such as the China milk scandal and the China food safety incidents.

In the free trade, the overflow of the products is inevitable.  It will significantly impact our people as customers. Now, let me ask another question: is our consumer protection law ready to protect the consumer’s rights amidst the free trade era?

The lack of standardization system demonstrates the concerns that our consumer – end customers, the person at the end of the supply chain as stated by law – is vulnerable for the direct impact of free trade if our government does not pay attention to these issues. Consumers are often powerless when dealing with big corporations. Therefore our government needs to ensure there exist a comprehensive set of laws and its implementation that protects the consumers.

In the sense of consumer protections, the law is required to cover the disparity that exist in bargaining power between consumers and merchants if there are any disputes on the products. The disputes would occur if the standardization system failed to filter the products.

My point is simple: the consumer laws have to be a vehicle for expressing consumer’s right. We need to protect our people, so they will not become a “victim” of free trade.

Take Prita’s case as a clear example to show the disparity that exists: Prita was sued and held in custody for libel by Omni International Hospital in Tangerang for complaining in an e-mail.

Indonesia’s Consumer Protection Law has been around since 1999. The Law was enthusiastically crafted, but not well prepared, during the reformasi hysteria. As a result, the Law is full of contradictions within itself and with other laws.

An excellent example about the laxity of our consumer protection law: the costs for individual consumers to litigate fraud and warranty disputes were often prohibitive.

Flaws on the law, the lack of socialization and implementation about the law itself poses significant risks for consumers as a free trade object. The Consumers Dispute Resolution Agency (BPSK) that was established as mandated in the Law is arguably toothless. They lack the adequate authority to decide over consumer disputes. It is lacking due to the flaws of our consumer’s protection law.

The merchants could easily dismiss the agency’s authority to decide over the disputes. As a result, the consumers will need to access and express their rights through ordinary court (district court), which is far more complicated.

When the cost of legal enforcement exceeds the expected recovery, it will become a universal hurdle to enforcement methods The complexities, uncertainty, and lengthiness of formal legal proceedings in Indonesia add setbacks for consumer protection.

Weaknesses in the existing court system, when coupled with the weaknesses in the state-controlled enforcement apparatus will undermine the potential for effectively enforcing consumer rights. As I have established, consumer rights at a time of free trade becomes even more important.

As a comparison, in other countries such as United States, Hong Kong, Canada, the United Kingdom, and South Africa, their judicial system enables consumers to express and access their rights through the Small Claims Court. In this court, consumers can easily file a petition and express their rights without the complicated process of an ordinary court.  Small claims court recognizes the disparity in bargaining power between consumers and the merchant.

Furthermore, the lack of private consumer organizations is detrimental to our consumers. We need more independent consumer protection groups in order to protect the consumers and in the same time demand responsibility from the government and the merchants. We need them to serve as watchdogs for the interest of consumers.

We need to improve our Customer Protection Law. We need a set of laws that protect consumers and should they need to settle their disputes, we need to provide them a legal recourse through a court that is much simpler, like the Small Claims Court system. The government also needs to educate the consumers about their rights and how to properly access it. I concede the point that we must be ready for ACFTA. It is not just about the government but also consumers need to “preparing” themselves to face the free trade. They need to educate themselves about their right and responsibility as a consumer.

The world will only continue to open up and intertwined. But in doing so, let us not forget our consumers.

1 Comment

Filed under 1

January 22, 2010 · 9:11 am

Sports Key to Social Change and Solidarity

This article was published by Jakarta Globe, 26 January 2010

http://thejakartaglobe.com/opinion/sports-key-to-social-change-and-solidarity/354749

The loss by our national team in the “must-win” match against Oman points once again to the lack of development of sports in Indonesia. The country’s national football team, known as PSSI, performed poorly in 2009 in all age groups. The under-23 team did not win a single medal at the Southeast Asian Games in Laos, while the under-19 team failed to bring home the prize from AFC U-19. This is a distressing situation for football-mad Indonesians.

It’s a common belief that we lack the funds to cultivate our football players and enable them to consistently perform on the international stage. But how can we compete when even our leading coaches are under-paid? Benny Dollo, the coach of PSSI, has to hold down a second job as a director at Persija, a situation that must hinder his ability to focus and dedicate his expertise 100 percent to a PSSI team that is desperately in need of a win. This cannot be compared to the Guus Hiddink situation whereby he was able to coach both South Korea and PSV Eindhoven in 2002 and Chelsea and Russia in 2009. Hiddink is dealing with teams that are well-developed and supported by professional coaching staff and players. Very unlike the conditions here.

In the past, former coach Ivan Kolev and his aides have faced late wages. Renowned Sriwijaya FC coach Rahmad Darmawan refused to handle PSSI as an expression of the discontent with the low pay offered. What would be the expected outcome from this situation? For one, PSSI has missed out on the continental championship for the first time since 1996. Poor budgeting is most negative factor that contributes to PSSI’s inability to enhance Indonesia’s reputation even at the South East Asia level.

The country’s poor performance in football is a sad reflection of our national sports performance program, which is enshrined in the Sport Law. Something must change.

The government has yet to put in place the fundamental principles that will enable the creation of a sustainable sport development program that grooms potential athletes from an early age. The state, through the Ministry of Youth Affairs and Sport, which plays a vital role in the development of all major sports, has only allocated 0.1 percent (Rp 857 billion or $19.7 million) of the state budget for sports. National Sports Committee of Indonesia (KONI) chairwoman, Rita Subowo, has complained about the small budget and limited infrastructure provided by the state. The results are that we have produced very few champions in major international sports.

Our government doesn’t mind spending Rp 126.8 billion of state funds to provide cabinet members with luxury Toyota Crown Royal Saloons and another billion for the new deputy minister facilities and perks. Better our government spend the taxpayers’ money on sports development improvements. In light of this, I would suggest that our government still views sports development as a less than significant issue.

Perhaps the it fails to recognize the importance of sports in society. Apart from giving the country a sense of national pride, sports plays a crucial role in contributing to social change. It can uplift and unify. Countries that have winning teams and consistently produce champions often have a greater sense of purpose and direction. A case in point is Iraq’s unlikely win in the 2007 Asian Cup, which showed how a national football team could spark a rare source of shared joy in an otherwise sectarian, war-weary nation. According to former Iraq coach Jorvan Viera, his team never mixed politics and football even though it was made up of both Sunni and Shiite members.

History has shown the capacity of sport to contribute to social change and strengthen societies. It has changed individuals’ lives and, more importantly, contributed to and facilitated larger social change within and across societies. Nelson Mandela once said: “Sport is very important for building character because when you’re involved in sport, your individual character comes out, your determination, your ability to be part of the team and the acceptance of the collective effort is extremely important in developing your country as well as patriotism.”

Moreover, in a diverse country like Indonesia, the possibilities that exist within sports are those that can bridge the diversity cultures of our nation. Sports can be used as a tool to foster social capital through building relationships, networking and making connections in order to strengthen our solidarity as a nation. Take our national football team as an example. We have Boas Solossa and Ricardo Salampessy from Papua, Bambang Pamungkas from Java, Saktiawan Sinaga from Sumatra and Syamsul Chaeruddin from Sulawesi. Even though they come from different cultures and societies across the archipelago, they don a uniform that symbolizes unity. This shows that sports has a profound role in nation building.

Sports is indeed about connection. Whether we are fans or coaches or players, most of us engage in sports with other people. In a number of ways, sports has long been an agent for social change. Our Sport Law, which states that sports is a tool to be used to strengthen our solidarity and unity, is no more than empty rhetoric without any action from the government.

It is time to move on from the heartbreaking defeat suffered by our football teams and other poor performances. The government needs to act to change these sad facts. The first items on the to-do list: please recognize that sports can be used as an agent for social change and a means for increasing national solidarity. Then increase the budget for sports development and build sufficient training camps in all regions in order to groom potential athletes at an early age. The bottom line is we need qualified people running our sports organizations.

The possibilities of sports as an agent for social change are encapsulated in the words of Kenyan athlete Kip Keino, a former Olympian: “I believe that sport is one of the tools that can unite the country. Sport is something different from fighting in war and it can make a difference. We can change this world by using sport as a tool.”

Leave a comment

Filed under 1

December 28, 2009 · 4:10 am

Bygone Bank Bailouts: Please Don’t Make It Any Worse, Dear Lawmakers

this article was published by Jakarta Globe on 27 December 2009 ( http://thejakartaglobe.com/opinion/bygone-bank-bailouts-please-dont-make-it-any-worse-dear-lawmakers/349576 )

Vice President Boediono and US Federal Reserve Chairman Ben Bernanke share several similarities. During the global economic crisis both held prominent positions as chief of the central bank of their respective countries. During their terms, both made the decision to employ government bailouts in order to save the economy.

Both the Fed and our central bank are independent government agencies that enact and implement monetary policies. Both have immense influence over many monetary issues, such as inflation, unemployment, strength of funds and even the strength of your own wallet.

They also have full authority to control monetary policies in order to safeguard the monetary systems of their countries. Bernanke disbursed a total of $11.6 trillion in bailout money to rescue tottering US financial institutions. Meanwhile Boediono disbursed a $699 million bailout to the ailing Bank Century, now Bank Mutiara. Both men claim to have made their decisions in order to save their countries’ financial systems and avoid bigger crises.

In the case of Indonesia, the reason for providing bailout funds was because it was feared that if Bank Century was not saved, other banks would collapse, triggering a domino effect that would result in an even worse financial situation.

Even though Bank Century was a small bank with marginal assets it was predicted that if the bank were to collapse it would initiate a greater financial crisis. Boediono’s actions would suggest the belief that economic stability does not depend only on “Too Big to Fail” Banks.

However, despite the good intentions of his bailout decision, Boediono is now facing an investigation by a House of Representatives special committee.

The main concern of the committee is whether ailing Bank Century would have actually had a contagion effect on other financial institutions. They are thus questioning the appropriateness of the decision.

Contrary to the controversy in Indonesia, many Americans believe that Bernanke’s bailout plan saved the US economy from recession. The trust of the American people in Bernanke was justified when he was elected during the Obama administration for a second term in the Fed’s top post.

Thus, the question of the day is whether the decision to save Bank Century was wise and appropriate.

Former Vice President Jusuf Kalla believes that the bank’s problems were not caused by the financial crisis but were the result of a criminal act. Therefore, if the bank were to eventually collapse, there would be no threat of a greater regional or even global crisis.

The fact is, the former owners of Bank Century simply ran off with funds belonging to the bank’s customers.

Pradjoto, an expert on banking law, has been quoted as saying that the owners of Century Bank were “lucky” and had chosen the “perfect time” to commit their crime during the global financial crisis. They were not caught and and their bank ironically received a fresh injection of capital from the government.

According to our Central Bank Law, Bank Indonesia and the Ministry of Finance hold the authority to determine the course of action for banking institutions in crisis. Boediono, along with Sri Mulyani as the minister of finance, used their authority and decided to bail out Bank Century while Bernanke decided to spend $11.6 trillion to rescue the US economy. Both bailout plans sparked outcry from the public and lawmakers.

US House Financial Services Committee Chairman Barney Frank, for example, said that in the middle of a global crisis lawmakers did not have enough time to debate the merits of the bailout.

But what we must focus on now is the intention and motivation of our bailout plan, which was to save the economy.

What is happening now is that the House’s committee has been hijacked by a number of political special interest groups whose goals are to attack Boediono and Sri Mulyani.

The actions and inquiries of the House committee are thus at risk of resulting in more harm than good.

What will happen should there be a future financial crisis? Or any other kind of crises for that matter? If the government officials who are given the authority to make decisions are later challenged, ridiculed, and faced with criminal charges, who would then be willing to take charge? Who would want to make decisions in order to save our country?

Yes, a government official must be prudent in making decisions, especially decisions related to the economy, but what happens once those prudent decisions, made with good intentions, turn out not exactly as planned?

Is it fair that decision makers be subjected to ridicule, shame and even criminal charges when they had the country’s best interest at heart?

Halim Alamsyah, director of banking research and regulation at the central bank, was quoted by this paper as saying: “If I were asked to make a decision and I knew it would turn out like this, I would not do it.”

How then should a government official make a decision in times such as the 2008 global crisis? What is the measurement for a “good” and “prudent” decision?

Prof Hikmahanto Juwana, a professor of law at the University of Indonesia, said, “What are the distinctions between bad or good in decision making by public officials? Another official in the same post could have made a different decision.”

Is it appropriate that the debate on whether the bailout decision for Bank Century was a “good” or “bad” course of action take in the first place?

Even though it is true that the bank’s near collapse was caused by a criminal act, the government had to act fast and had to choose between saving the economy and proceeding with criminal actions. The government decided that saving the economy was the first priority, which led to the bailout.

According to law, the Indonesia Deposit Insurance Corporation controls Bank Century for three years. That control can be extended for another two years with the purpose of eventually selling the bank for a profit.

In light of this, I would deem the bailout a form of investment by the government. Thus, in addition to hindering the occurrence of a systemic banking crisis, the government may also generate some profit.

Therefore, allegations of corruption are not plausible at this stage, considering Century Bank’s profit, so far, in September 2009 reach Rp.237.7 Billion

With the House’s committee consistently questioning the case — with questions that many believe are politically motivated due to lack of substantial issues — I believe it will undermine the public’s trust in depositing funds in Bank Mutiara, thereby significantly impacting the bank’s business and the government’s investment.

Is the committee aware of these consequences?

The wise thing to do is to wait for the result of the government’s plan for Bank Century (i.e. a return on its “investment”) while legal enforcers concentrate their efforts on the criminal acts and returning any of the bank’s remaining assets to our country.

In the meantime, questions remain. Only Robert Tantular is in custody right now; where are Dewi Tantular, Rafat Ali Rizi and Hesham al Warraq? Why don’t our lawmakers put their efforts into helping law enforcement agencies pursue the perpetrators of criminal acts?

A lack of answers to questions like these means that the bailout decisions by Boediono and Bernanke have resulted in stories with decidedly different endings.

As Rahmat Waluyo, a Finance Ministry official, has said, “The only difference is that Bernanke has been named Time magazine’s Man of the Year while the former central bank governor and the minister of finance have to defend themselves in the biggest political debate this year.”

Leave a comment

Filed under 1

November 1, 2009 · 4:48 am

The Battle Of Idealism

this article was published by Jakarta Globe On 2nd December 2009 :

http://thejakartaglobe.com/opinion/court-brokers-need-to-be-broken/344869

Ongoing legal battles among our law-enforcement agencies have featured prominently in the news recently. For many of us working within the Indonesian legal system on a daily basis, it was not surprising that wiretapped conversations made public by the Constitutional Court suggested that some lawyers were involved in trying to weaken the Corruption Eradication Commission.

Brokering deals between lawyers and public servants is nothing new, and unfortunately, lawyers are often a part of the judicial mafia. These “black lawyers,” along with corrupt police, state prosecutors and judges involved with the judicial mafia, are “the elephants in the room” of our legal system.

This is a common problem and a complicated issue that urgently needs addressing. President Susilo Bambang Yudhoyono himself said last week that the country’s law enforcers must root out any practice of deal-brokering, and that the eradication of the judicial mafia is a priority for his first 100 days in government.

In relation to the case against the deputies from the antigraft commission, also known as the KPK, the whereabouts of Anggoro Widjojo, the fugitive businessman who first accused the officials of receiving bribes from him, remains unclear. One of his lawyers, Bonaran Situmeang, claims Anggoro refuses to return to Indonesia because law enforcers have been unfair to him and he is seeking justice according to his own views.

In this situation, lawyers are bound by the Advocate Law to protect their client’s privacy, so it would seem within reason that Anggoro’s lawyers have declined to disclose his whereabouts. But on the other hand, there is the little matter of national security. In this case, the lawyers for Anggoro are withholding information regarding an alleged criminal who is a threat to the country as the situation continues to deteriorate among the KPK, the National Police and the Attorney General’s Office. Furthermore, the Criminal Code deems concealing information about criminal actions a crime. This is where the battle of idealism begins.

Anggoro’s lawyers have the option to hide behind the Advocate Law to protect their client’s privacy. This choice would seem their best option; by giving up their client, they would be bound to lose their credibility as lawyers. However, what about their obligation to society, to protect the country and serve the people? A lawyer’s duty is not only to protect their clients, but also to ensure that our legal system works fairly and efficiently.

This is the question of the hour: Do Anggoro’s lawyers and all the so-called black lawyers really believe in the ethics and the morality that their profession stands for?

US President Woodrow Wilson once said that “the practice of law has become a more highly technical and complicated business.” This is one such example of that business. We have seen so much, in fact, that brokering deals with public servants and lawyers is nothing new in our beloved country. Shockingly, the public has been asked to pity Anggoro and his family, claiming he is a victim. If his lawyers say only a court can determine his guilt, then why don’t they bring their client back to Indonesia for a lawful trial?

With the Advocate Law having only been enacted in 2003, lawyers are still learning how to uphold the law in regard to their duty as a “law enforcers.” The infighting between the Indonesian Lawyers Association, Indonesian Congress of Advocates and the former Indonesian Union of Advocates was a clear example of how the learning process is still ongoing.

Other cases where lawyers were involved in brokering deals include the Bank Indonesia liquidity credit case, when Reno Iskandarsyah, the lawyer for Bank Restructuring Board (BPPN) Chief Glenn Yusuf, allegedly bribed state prosecutor Urip Tri Gunawan in January 2008. In the Harini Wiyoso case, the lawyer of Suharto’s step brother, Probosutedjo, bribed Supreme Court staff in regards to the graft case brought against his client in 2005. Then add to that the recent allegations against Lucas, the lawyer for Boedi Sampoerna, in connection to the controversial withdrawals in the PT Bank Century case, and the allegations that the lawyers for Nyoman Susrama, the brother of a local Bali district head who stands accused of murdering a Radar Bali journalist, encouraged witnesses in the trial to give false testimonies.

According to renowned Indonesia scholar Daniel S Lev, the reason lawyers here are widely known as brokers is because they believe that money makes the legal system work much better and more efficiently. That is why when they are handling cases, their perspective is often one of bribes and connections.

Today, talk of legal reform has begun reverberating following the very public clash between the state’s law enforcement agencies. Reform for lawyers, however, is often overlooked because lawyers are the exclusive representatives of civil society in the court and because they are independent of the state. But this is the prime reason why lawyers have a duty to serve the country by ensuring our judicial system works fairly, and that no money or connections are involved. Their devotion to the rule of law is paramount.

Since lawyers do not seem to want to stand up for the greater good, we now have to rely on the government to enforce the law reforms. We hope that the president’s “ Ganyang Mafia ” (“Crush the Judicial Mafia”) credo is not just rhetoric without substance, but also includes the mafioso that are often overlooked: the black lawyers.



Leave a comment

Filed under My Perspective

October 23, 2009 · 4:20 am

Law On Stoning To Death In Aceh : Did Pancasila die just a little bit more today?

“Bahrom Rasjid, one of the law’s drafters and a member of parliament, says the bill was passed unanimously Monday by the regional house of representatives. It will take effect within 30 days.” – The Jakarta Post 14/09/2009

The news in The Jakarta Post, 14 September 2009, had been annoying me for the past few days. It takes place in Aceh, a semi-autonomy provinces  enforcing Sharia law provisions. The law draft came from the office of Governor Irwandi Yusuf, a US-educated veterinarian with secular views who spent his early adult years fighting in the Acehnese armed resistance. Within 30 days as of 14/09 Aceh province will allow stoning to death for adultery and whipping for premarital sex and homosexuality, whereby such will also be punishable by steep prison

Stoning as a form of sanctioning is applied in various forms in Afghanistan, Iran, Pakistan, Sudan, Saudi Arabia, the United Arab Emirates and parts of Nigeria. But its use is a point of contention among Islamic scholars. The new Indonesian law also imposes tough sentences and fines, to be paid in kilograms of gold, for rape and pedophilia, but the most hotly disputed article was on adultery and states that offenders could be punished by a minimum of 100 lashings and a maximum of stoning to death. The most notable example in modern Islam was that of Amina Lawal, a young woman who was sentenced to death in a Nigerian state in 2002 for having sex outside marriage, but was later released.

Do you remember when the death penalty procedure was challenged by Moslem’s Advocacy Team (Tim Pembela Muslim) who were the defense lawyers for Amrozi (accused Bali bombers), in Constitutional Court?

They questioned the procedure and proclaimed that there is only an 85% chance in dying when a person is shot for the first. There is a possibility  that this might lean towards “torture action”, whereas such is against basic human rights “freedom from torture” that is stated on our basic constitution ( UUD 1945 ) article 28 I.

Freedom from torture, is a basic principle of human rights that has been decided by our basic constitution (UUD 1945) second amendment and Law no 39/1999 articles 4.

Although it is Regional regulation, Law On Stoning to death should refer to National Law No 32/2004 on Regional Regulations and the national laws  which should be the basis for forming regional regulations,  Articles 136 (4) states that Regional regulations may not contradict with national laws and existing common norms and values.

The Definitions about “against common norm and value” can be interpreted as a policy that is not only discriminative but also results in the disturbance of community relationship and public service. The consequences beyond that is if it contradicts with national laws and existing norms and values, it is not binding anymore. Moreover, the bill violates national and international treaties signed by Indonesia protecting the rights of minorities and women because “morally unacceptable action”, such as whipping for premarital sex and steep prison for homosexuality.

Althought Indonesia is the largest moslem population in the world, we are not a moslem country. Let me quote the words of former presidentKH Abdurrahman Wahid: “we must see Islam as an ideological brick that is part of an Indonesian building of principles established on diversity”. The foundation of our five pillars principle,known as “Pancasila” that rules our country is unquestionable.
The new bill on Aceh, is a backward step to our democracy. It is discriminatory and it is saddening. because it violates CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) that was signed by Indonesia. I really hope that the national government will take action on this and will not sit silently.

Leave a comment

Filed under My Perspective

October 23, 2009 · 4:04 am

Improving Integrity through Education For Lawyers: One of the Key Role to Overcome Challenges

“Lawyers should at all times maintain the honor and dignity of their profession as an officium nobile (honourable profession)”

Whenever I attend Special Education for Advocates (PKPA) ccourses, that phrase always echoes in my mind. Those fine words were stated by my class-tutor who is not just senior lawyer but also a renowned.

Ever since I was in Junior High School, my dream was to become a lawyer. In order to pursue this dream, as a first step, I attended Law School at the University of Indonesia after graduating from High School. The next step to become a lawyer in Indonesia is to attend PKPA courses in order to grasp a firm knowledge of Indonesian law followed by taking a test held by the Indonesian Bar Association (PERADI). After passing the test, all prospective lawyers are required to compose six case study reports, which consist of three reports regarding to criminal cases, and six reports regarding to civil cases, all of which must be cases that the lawyer has handled by him or herself. To fulfill these requirements, after graduating with a Bachelor of Laws Degree, I signed up for PKPA courses. I am now in the steps of preparing for the test conducted by PERADI and just a few steps away from becoming a lawyer. Based on my experience so far, I would like to point out a few issues in our lawyers recruitment system.

What is interesting to highlight is the very unclear recruitment system of advocates in Indonesia. This problem contributes to disputes between bar associations in Indonesia, namely PERADI and Indonesian Congress of Advocates Association (KAI). These disputes show that advocates are yet able to live up to the phrase officium nobile. But, I am not going to take a side.

First, there are no clear rules regarding to the PKPA courses. There are no rules and regulations concerning the tutors for the courses and no clear guidelines regarding to the curriculum and timetable of the courses. In most institutions that hold such PKPA courses, the participants are required to pay a large sum of fees ranging from around IDR 4 Million to 5 Million. Even with fees that high, there is no guarantee that the participants will be taught by appropriate tutors, such as senior lawyers or renowned law academicians. The Bar Association Regulation No 03/2006 (Peraturan PERADI no 03/2006) does not provide requirements for tutors in the preparation courses. Article 7 of the regulation only stipulates common provisions regarding to the tutors. Furthermore, there is no required timetable for the courses. Some institutions offer courses that only last for a period of one month. How much can a person actually learn in a month? Is this timetable adequate? These issues could most likely impact the honor and dignity of the lawyer profession itself. Furthermore, without clear rules, institutions are turning PKPA courses into a business, therefore not maintaining the quality of the courses.

PKPA stands for Special Education for Advocates. From the word education itself, we can see that the means of this class in not only to teach prospective lawyers academic knowledge (which was already taught in law school) but also moral and integrity as lawyers. I would like to say, PKPA courses, which plays a large role in giving birth to advocates, could by no means be simple. Furthermore, Article 5 of the Indonesia Advocate code also requires that tutors for PKPA courses satisfy the phrase officium nobile. This means that the tutors must be advocates, law practitioners or academicians who hold high the law profession.

Furthermore, I have to say the knowledge I obtained in the PKPA courses were very different from what was expected. Frankly, I was quite disappointed. One of the reasons why the advocate profession is viewed as an officium nobile is because all lawyers have a duty to conduct free legal service for the less fortunate or more popularly known as pro bono work. This is stipulated in the Advocate Law of Indonesia. However, I found that this subject was seldom mentioned in the PKPA courses.

I view that it is very important that the Bar Association of Indonesia  encourage the prospective lawyers to fulfill their professional obligation to serve the less fortunate. It is very important to send out the message that building integrity as a lawyer is as important as or perhaps more important than making money. All prospective lawyers should understand that pro bono work is a professional responsibility, not an act of charity. In the other words, such pro bono work may help build the moral integrity needed by legal enforcers to support their legal knowledge. This is important because lawyers provide legal service (both free and paid) directly to people who need help. Therefore, it is crucial that all lawyers build their moral integrity through pro bono work. What is astonishing and saddening is that in fact, the number of lawyers that actually conduct pro bono work is very limited.

In my opinion, this negligence is one of the impacts of the chaotic advocate requirement system. If you google the words “being fooled by lawyer” (ditipu pengacara – in Indonesian words) you will get a wide rage of results. This fact must be viewed by the Bar Association as warning signs to reform the recruitment system.  While I served at the legal aid of UI, I observed that the main reason that people seek legal aid is apart from having limited funds, they no longer have faith in commercial lawyers. By creating strict regulations, prospective advocates shall be subject to more stringent requirement. Consequently, the honor and dignity of lawyers will automatically be established.

If you compare our current recruiting system to those of the United States (US), the US requires a 4-year college degree, 3 years of law school, and passing a written bar examination in order to become a lawyer. In my opinion, this is far more complicated. However, with strict rules and guidelines the US is able to produce lawyers which reflect the phrase officium nobile and holds the presidential post. I believe we can do that also. As I mentioned before, the appropriate strict rules and regulations are essential in order to maintain the quality of lawyers in Indonesia. We might not be able to be the same as the US is now. But it is a start. This is where the Bar Association comes in.

The law society of Indonesia put its faith in the bar association to produce high quality advocates through PKPA courses. This can be seen by the large amount of profit that these PKPA courses have gained.  This gives an even larger burden to the bar association in order to satisfy the public. Being trusted to groom and give birth to Indonesia’s advocates of tomorrow, it is the bar association’s main duty to improve the quality of PKPA by setting up the correct rules and guidelines.

2 Comments

Filed under My Perspective