International Law

Indonesia gearing up towards Creative Commons

Posted on October 25, 2009
One of my colleague leads a Creative Commons Project in Indonesia. Tempo reported that the activists are campaigning the license to law enforcement institutions, before submitting them later to the central government.  I really hope that their efforts will materialize...

Revising Aceh's stoning law

Posted on October 21, 2009
According to an Aceh legislator:However, a council member from the Prosperous Justice Party (PKS), Moharriadi Syafari, said the bylaw would come into effect 30 days after it was passed regardless of the governor?s refusal to endorse it. Syafari advised people who are against the bylaw to apply for judicial review to the Constitutional Court...

KPK - BP Migas; Conflict of Interest?

Posted on October 11, 2009
The Jakarta Globe reported:In a move to address persistent allegations of corruption in the multibillion dollar oil and gas sector, the Energy and Mineral Resources Ministry on Friday appointed an officer of the Corruption Eradication Commission to the board of directors of upstream oil and gas regulator BPMigas...

The new electricity law

Posted on September 11, 2009
The House of Representative recently passed the new electricity bill. The bill is perceived by the media as a real attempt to liberalize the electricity sector in Indonesia. But is it true that the law is an attempt to liberalize the sector? How does the law protect investor?Under the new law, electricity provision are segregated into generation, transmission, distribution and retail and the private sector is allowed to participate...

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The Social Cost of Cigarette (and its advertisement) in Indonesia

Posted on September 10, 2009
Pramudya has been very kind in providing us a commentary on the recent Constitutional Court Decision on Cigarette Advertisement in his post. I agree with him that the negative externalities arising out of cigarette must be borne by the consumer and that -- given the explicit contribution to income -- dealing with tobacco industry in Indonesia would not be easy...

Behavioral Monkeynomics

Posted on September 08, 2009
First of all, a hat tip to my Canadian friend who referred me to this article at Science Daily: "Monkeys Follow Economic Rules Of Supply And Demand".Cécile Fruteau placed food containers with highly-desired pieces of apple in two groups of South African vervet monkeys...

Indonesia needs a strong water services law

Posted on August 31, 2009
Following is my latest op-ed at the JP:Indonesia Needs a Strong Water Services Law Mohamad Mova Al `Afghani , Dundee , UK | Mon, 08/31/2009 11:56 AM | Opinion The current condition in the water and sanitation sector is bleak...

Why is a speed limit rule effective?

Posted on August 23, 2009
I had a discussion with my Canadian friend a few days ago. I told him, that I grew skepticial about the role of law in society. I explained, that it is very difficult to establish causation (or strong correlation) between a particular law and behavioral changes intended by the law...

Is Privatisation Irreversible?

Posted on August 17, 2009
I took this picture at the Edinburgh Train Station Yesterday (Aug 16, 2009)

The rivers are our brothers

Posted on August 11, 2009
Here's a quote from what is believed to be a speech of the Indian Chief, Seattle. If you are familiar with property rights theories and the tragedy of the commons, this speech offers another perspective in looking at the environment.How can you buy or sell the sky, the warmth of the land? The idea is strange to us...

[Guest Post] Court Reporters? Role in Depositions

Posted on August 10, 2009
A court reporter is perhaps the most important person in the courtroom if you?re looking for the history of the trial ? he or she is responsible for ensuring that every word said in the courtroom is transcribed into indelible records that can be analyzed and scrutinized down the ages...

End of natural monopoly in the water sector?

Posted on August 09, 2009
Michael Pritchard demonstrated his Lifesaver Bottle that can turn filthy water into drinkable water in a matter of second. The portable lifesaver filter is said to have 15 nanometer pores, small enough to filter viruses. The running cost to produce 25...

Gecko challenging a crocodile

Posted on July 26, 2009
NYT posted a story on the recent polemic between the gecko and the crocodile:?Now our relations are no good because the K.P.K. started picking on their high officials,? said Erry Riyana Hardjapamekas, a former deputy chairman at the commission. ?We suspect each other...

Draft Law on Commercial Court

Posted on July 25, 2009
The Central Jakarta Court website published a draft Law (June 2009 version) on Commercial Court (in Bahasa). Click here.

The New Indonesian Mining Law

Posted on July 23, 2009
ABNR/CastleAsia provided update on the new mining law here. The Jakarta Post published some report on divestment obligations for foreign mining firms here and here. A rather academic discussion is available on a paper here. IFLR published a memo on mining -- quite thorough here...

Govt limits liability for nuclear accidents

Posted on July 19, 2009
The government recently issued GR 46/2009 on the limit of liability for losses caused by nuclear accidents. Under the recent GR, liability is limited into Rp. 4. Trillion (from the previous Rp. 900 billion). Read the said GR here (in Bahasa).

Can public service law be applied to private sector?

Posted on July 14, 2009
Below is my recent Below is my recent op ed in Jakarta Post. Just a little typo at the 7th paragraph, it should read 'employer'.Can public service law be applied to private sector? Mohamad Mova Al Afghani , Jakarta | Tue, 07/14/2009 9:55 AM | Opinion The House of Representatives passed the public services bill into law on June 23, 2009...

Is Skype Auto Recharge setting illegal?

Posted on July 12, 2009
I am a regular skype user and found that its auto-recharge feature is annoying. Recently I found out that I am not the only one with this problem. Consider for example, this, this, this and this.Auto recharge is of course a feature that can help many users...

Hyperregulated Society and Its Discontents

Posted on July 05, 2009
I have been reading Habermas theory of Juridification and the colonization of lifeworld. I came across my old article arguing in the same line. Hyperegulated Society and Its Discontents By Mohamad Mova Al ?Afghani* The Jakarta Post, Opinion and Editorial - June 28, 2005...

Rewriting the antiterror law

Posted on July 04, 2009
Below is my 2005 op-ed on Indonesian Anti Terrorism Law in Jakarta Post.Rewriting the antiterror lawThe Jakarta Post , Jakarta | Mon, 10/24/2005 2:02 PM | OpinionMohamad Mova Al 'Afghani, JakartaLong unguarded coastlines, poverty, rampant corruption, a crippled legal system and widening social and economic gaps accompanied by mushrooming religious extremism have made Indonesia an easy target for terrorists...

Franchise in Indonesia

Posted on July 04, 2009
The franchise industry is booming in Indonesia, generating up to IDR 50 trillion annually, said the Jakarta Post. The legal framework for franchising has never been clearly outlined by the government. The nitty gritty of franchise agreement and the legislation surrounding it is elaborated in this page.

Hierarchy of regulations in Indonesia

Posted on June 30, 2009
I have been asked several times by my fellow lawyers working in foreign jurisdictions about the hierarchy of rules and regulations in Indonesia. This post will try to clarify.The hierarchy of rules based on the old People Consultative Assembly Decree is no longer in force...

Indonesia ranks 62 in FP failed states index

Posted on June 29, 2009
Indonesia's rank is 62 (out of 177 states) with a total score of 84,1. See the report here. Indonesia is colored orange, in the "warning" zone. Complete report is here, methodology is obtainable here.

Public Service Law was passed by the House

Posted on June 27, 2009
The House of Representative passed the Public Service Law last Tuesday (June 23). This law is expected to boost Indonesia's public service performance. The Law imposes sanctions to government officials in breach of public service obligations, in the form of warning, suspension and even termination of employment...

Bringing patients to court may not be efficient

Posted on June 19, 2009
This is my recent op-ed piece in JP. I tried to argue that litigating is not always the best option, both for producer and consumer in cases where credence good is involved.Unlike buying clothes in a department store, the quality of a particular health, legal and financial service is hard to ascertain...

Housewife on trial for defamation

Posted on June 03, 2009
Prita Mulyasari, the housewife detained for sending letter about her experience of (alleged) medical malpractice will undergo her first criminal trial tomorrow. Prita was brought to both civil and criminal suit by PT.Sarana Meditama Internasional Cs (presumably the legal incorporation of RS Omni where she was treated)...

HP 3 Rights, What Strategy for NGOs?

Posted on May 19, 2009
Following my Articles on HP-3 in Jakarta Post ("The need for Clarification on HP-3 Rights" and previously "Coastal Management Law Review?") it is relevant to ask question on which course of (legal) action would our Civil Societies colleagues take, in response to the enactment of Coastal Law...

The need for clarification on HP-3 rights

Posted on May 14, 2009
I published an article in today's Jakarta Post: Law 27/2007 enables private ownership of coastal zones through a system called HP-3 (which governs the right to commercialize coastal waters). The idea behind this system is to allow the exploitation of the currently neglected, but potentially profitable, 81,000 thousand kilometers of Indonesian coastline and its 12 mile wide territorial sea...

Preemptive Strike

Posted on May 10, 2009
I found my old article about preemptive strike (2004). The article was written when John Howard (who, at that time was racing for another period of premiership) issued a statement that he will employ preemptive attacks to terrorist bases, when necessary...

The Boss is in Time 100

Posted on May 01, 2009
SBY made it to Time 100's, "Leaders & Revolutionaries" #9:The time is right for Indonesia, as the world's most populous Muslim nation, to assume a more prominent position in Asia and throughout the Muslim world. In response to President Obama's warm overtures to Muslim countries for a new phase in relations with the U...

Transparency in water utilities

Posted on March 23, 2009
I argued in my newspaper op-ed that the natural monopoly character of water services justifies its transparency. The purpose of water services regulation is to reduce natural monopoly and decreases information asymmetry. Transparency mechanisms work in that direction by allowing information to be interpreted by competing interest groups, thereby enhancing the regulator's capacity in deciphering information and producing more qualified decisions...

?Obstruction of performance? under Article 86(2) of the EC Treaty and its application to the water sector

Posted on January 15, 2009
My master thesis attempts to define "Obstruction of performance" under Article 86(2) of the EC Treaty and how this category can be applied to the water industry. The thesis argued that Obstruction of performance has to be narrowly interpreted and necessity/proportionality of the measure has to be taken into account in order to invoke "Services of General Economic Interest" (SGEI) justification under the EC Treaty...

The New Law on Coastal Management

Posted on April 15, 2008
Here's my recent Article on Coastal Management Law in JP: Theoretically, there could be around 12 nautical miles times 81,000 kilometers of "greenfield" spaces in the sea, ready for exploitation, for up to 20 years. This is indeed a huge business opportunity...

My position on the 'Fitna' Film

Posted on April 05, 2008
Some friends and colleagues have asked my opinion on the Fitna film. For now I have no time to write a lengthy review and my stance on religious freedom has been quite clearly represented through my previous writings (see here, here and here).So let me just state my position briefly:We must protest but we cannot restrict.

More on blasphemy law

Posted on January 20, 2008
I wrote an article on how the law on blasphemy and the abuse of religion could contravene the constitution. There, I conclude that the Indonesian Constitution contains no specific reference to any religions and that Article 29(2) of the constitution was meant to protect not only major religions but also all beliefs...

CSR/GCG for utility companies

Posted on December 24, 2007
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...

Safeguarding Water Contracts (peer-reviewed version)

Posted on December 08, 2007
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...

State and Religion relationship in Indonesian Constitution

Posted on December 07, 2007
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...

Foreigners has no right of judicial review

Posted on November 19, 2007
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...

Jakarta's water problem

Posted on October 26, 2007
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...

Where is the "wealth of nations"? Answer: Rule of Law

Posted on October 06, 2007
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...

Concession markets in Indonesia

Posted on September 10, 2007
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.

Poor water infrastructure in Kupang?

Posted on August 28, 2007
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...

Living with the Other Fishes

Posted on August 27, 2007
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...

Longing for Corporate Social Responsibility's (CSR) implementing regulation

Posted on August 22, 2007
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...

Introducing a co-blogger

Posted on August 21, 2007
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...

Water war is a class war

Posted on August 20, 2007
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...

"Your" water, "their" tribunal. BITs in water privatizations

Posted on August 20, 2007
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...

Company Law to be Judicially Reviewed

Posted on August 19, 2007
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...

What 'natural resources'? CSR clause in the new Company Law

Posted on August 18, 2007
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...

Some note on Indonesian Investment Law

Posted on August 18, 2007
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.

The Tanzania Water Privatization Problem

Posted on August 18, 2007
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 Tanzania. 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...

Tragedy of the commons in water

Posted on July 27, 2007
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...

What kind of blogpost would you like to read?

Posted on July 23, 2007

Safeguarding a water contract

Posted on July 23, 2007
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)...

Indonesia needs a good squatting law?

Posted on July 22, 2007
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...

Click-wrap agreement unenforceable in Secondlife

Posted on July 19, 2007
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...

The right to water must be explicitly stated in the Constitution

Posted on July 10, 2007
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...

The New Negative List of Investment

Posted on July 06, 2007
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...

Why are poor countries, poor? Corruption

Posted on July 02, 2007
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...