Legal Justice Versus Legal Certainty

The above issue appears to merge in Indonesia at this present moment. The people in Indonesia has the perception that the Legal Enforcement only applies to the powerless people. Whereas for the Big Powerful person or institution,  since they can hire Lawyers they feel that the are immune and untouchable by the law.

These perceptions was demonstrated by the Prita Case where a patient who makes complaint upon the hospital service through internet had been sued by the Hospital claiming that their good name was being damaged by Prita's writing in the Internet media.

There were 2 cases being filed, by the Lawyers representing the Hospital, one through the Criminal Court and the other through a civil claim. Initially the First Instance Court issued its Decision  against Prita where she was demanded to pay around Rp204 million to the Hospital. However, the public's Voices  through the support of the TV Media in Indonesia  had  made a protest against such verdict  by  collecting  coins to support Prita, where they succeeded in collecting  and raising around Rp600million. This is really fantastic amount which shows that the Indonesian People are voicing their rights for Legal Justice Treatment by the Court in Indonesia. In the progress the Criminal Court in the First Instance had rejected the Hospital claim.

This Coin Protest was actually a symbol of protest from the people against Injustice Court Treatment  that is felt  being imposed against the powerless  victims. Indonesia is a democracy society where we can freely make  protests against Injustice Legal Treatment felt by  the people being made by the Legal Institution in this Country of Indonesia.

Hospitals in Indonesia nowadays appears to be more of Commercial  rather than Social Institution, who must serve the sick people who needs medical care. Lawyers defending Hospital  against complain made by the patient must also be sensitive in handling cases like above. If there are complaints by the Patients,  the Hospital must actually appreciate such inputs for better services to its Patients. Eventually, in the progress after facing the public reaction,  the Hospital realize of their negative reaction,  for which  they  decided to revoke  their claim against Prita in the Court.

The above is really a good lesson for us  as Business Lawyers that we have to be sensitive upon issues relating to maintaining good services to its patients.     

Now Indonesia's Judicial Mafia Fight Gets Serious: SBY

----- Original Message -----
From: Loeky Harahap
To: fhui-70an
Sent: Wednesday, January 06, 2010 7:06 AM
Subject: [FHUI-70AN] Now Indonesia's Judicial Mafia Fight Gets Serious: SBY



President Susilo Bambang Yudhoyono on Tuesday stressed his resolve to purge the “judicial mafia,” calling on law-enforcement agencies to commit to the fight. To boost those efforts, he said he would demand bureaucratic reforms across 13 ministries and state institutions linked to law enforcement and governance.

“Remember, in the hands of corrupt law enforcers, anything bent can be straightened and the straight can be bent. I want judicial mafia practices to cease,” said Yudhoyono at the State Palace, while introducing the 2010 budgets for ministries, government institutions and regional administrations. Law-enforcement officials, whether in Jakarta or the regions, should not manipulate the law, he said.

The president named eliminating corruption in the judiciary as one of his top priorities when announcing the government’s first-100-day program in October. Last week, he formed a six-member task force to suggest ideas for eliminating graft in the country’s courts, considered to be some of Asia’s most corrupt. The task force met with leaders of the National Police and the Corruption Eradication Commission (KPK) on Tuesday to discuss the way forward. A high-profile feud between the two institutions brought judicial corruption into the political spotlight last year.


Task force chairman Kuntoro Mangkusubroto said the antigraft agency had vowed to help. “The KPK pledged to assist us through its facilities, such as its complaint-handling mechanism that enables people to report judicial mafia activities online and anonymously,” he said. Edward Aritonang, a spokesman for the National Police, said it was also forming a team to support the task force. “We leave everything fully in the control of the task force,” he said. The team would brief provincial police chiefs in Jakarta today, he added.

Yudhoyono also warned critics against judging his government’s success in fulfilling the pledges of its first-100-day program. On Monday, Coordinating Minister for the Economy Hatta Rajasa claimed, without offering evidence, that the government had completed 92 percent of its 100-day goals. “Although the government’s first-100-day program is important, it is impossible to contain all the development priorities and targets for five years. In addition, it is illogical to measure government success for the 2009-14 period by the first 100-day program,” Yudhoyono said.

But Ikrar Nusa Bakti, a political analyst at the Indonesian Institute of Sciences (LIPI), called the first 100 days “crucial,” saying success would boost public trust. “I’d say the success of the program is the embryo of the success of the government’s five-year program,” he said. Yunarto Widjaja, a political analyst at Charta Politika, suggested that ministers should not hesitate to admit failures. “They should convince the people that they will work harder to implement their programs,” he said. 

Yudhoyono said the economic achievements of last year made him optimistic his government could reach its 2014 economic goals: an annual growth rate of 7 percent, inflation of 5 percent, poverty at 8 percent to 10 percent, and unemployment of 6 percent. The economy grew by more than 4 percent in 2009. Inflation was 2.78 percent, the lowest in a decade.

Additional reporting by Antara


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Lawyer is like Artist

A Lawyer according to me at a certain level is like an artist. They tend to be freedom. Freedom to express their ideas and visions.  If the rules are  regarded as rigid, uncertain, unclear,   Lawyers must seek and  found a breakthrough or way out from such uncertain rules to solve the problem.

If  you are a Business Corporate Lawyers you tend to seek a solution to  make the business goal and achievement  met and be fulfilled. Well, my 30 Years of Experiencing as a Business Lawyer educates me that nothing in this world is perfect. Especially in Indonesia the product of Rules is actually a Political Product created by the House of Peoples Representatives which consists of members of the winning Political Parties and the Executives from the President together with its Ministers including the Departments headed by the Ministers.

Since all Departments have their interests in their respective fields, these Departments frequently  tend  to  only look from their own perspectives without viewing  other Departments view. These are  the reason why there  are lots of situation where  Overlapping and contradictory rules  occurs between one Department and the other Department  such as the Department of Forestry and the Department of Mining and Energy. You must also remember that besides the written rules there may also be Policies made by the Ministers of a certain Department which sometimes may need further clarification for the business players. We may also frequently found contradictory rules between the Central Governments and the Regional Local Governments in  this  Non-Centralize Era in Indonesia.  I believe that the Government and the Parliament knows about such problems which are usually expressed by the Business Associations representing the business players concern.

Well as a Business Lawyer you have to found out a way how to overcome such overlapping rules for the interest of creating certainty for your Clients business goals and objectives.

Experiencing Negotiating Joint Operation Agreement

As a Business Lawyer it will be really  interesting and exiting,  if you have the experience accompanying your Client in negotiating a Joint Operation Agreement (JOA) which are entered by the Participant Interests Holders of a Technical Assistance Agreement (TAC) in Indonesia. 

The position as a Business  Lawyer may be different from one case to another. If for instance, you are a Business Lawyer, who are representing your Client, who needs some additional investors to support its cash flows to perform the oil and gas operations as agreed upon under the TAC with BP Migas,  and decides to transfer or assign a major portion of its undivided interest under the TAC to a certain potential Investors, you may be in a position to be more of a listening and wait for the proposal of a draft JOA from such prospective Oil/Gas Investors.You may also submit a proposal of  the first draft to be further reviewed by such potential prospective oil/gas investors. Some significant elements which are usually touched in a JOA, when you just entered into a  negotiation are among others  concerning the issues describing or clarifying the purpose  the Parties entered into this JOA.

As we are aware in the Oil and Gas Business several Investors are involved into this venture since significant amount of Monies are involved where the Parties shall share the costs and expenses in such Oil and Gas Business Operations in proportion to the percentage of their Participant Interest Share. The operations usually involved activities such as  exploration, appraisal, exploitation, development, storage, production and disposition of Hydrocarbons from the Contract Area. There are operations that are being Jointly Operated in the sense that the costs shall be shared, this will be the Joint Operations.

However there are also circumstances where Only  a number or some of  the Participant Interest Holder  who  participates  in the operations,  which shall be usually called Sole Risk Operations.Thus in order to create a clear understanding between the Parties who intends to participate in the TAC , the Parties requires a separate agreement among themselves which is covered by this JOA. Accordingly  this JOA  is required to  regulate   the  rights and obligations of the Parties ( which does not include BP Migas)  concerning  the operations to be conducted under the TAC between the Signing Parties mentioned under the TAC as the Participant Interest Holder, who had signed the TAC with BP Migas. These  includes among others  the joint exploration, appraisal, exploitation, development, storage, production and disposition of Hydrocarbons from the Contract Area,  the decommissioning of  the joint property and conditions for carrying out Exclusive Operation in the Contract Area. 

This JOA shall usually be agreed by the Parties  as  the entire agreement between the Parties regulating  the terms and conditions between them related to the Joint Operations, unless there  exists other documents which are agreed by the Parties  to also also govern their agreements. The scope under the JOA may include the terms under the TAC between The Parties with BP Migas, but may also contain activities which are under the TAC but is not intended to be addressed in this JOA.

These for instance may consists of construction, operation, ownership, maintenance, repair and removal of facilities downstream from the delivery point, transportation of the Parties’ Entitlements downstream from the delivery point, marketing and sales of the Hydrocarbons and other issues which are  not intended to be addressed in such JOA.The Parties shall further specify the composition of the Participating Interests of the Parties. The composition of the Parties will play an important role in describing the portion of rights, obligations and liabilities.

The major portion holder of the Participant Interest under the TAC, shall usually be elected as the Operator of such TAC. If a Party transfers all or part of its Participating Interest pursuant to the provisions of this JOA and the TAC, the Participating Interests of the Parties shall be revised accordingly. The Parties will also regulate the terms which covers the rights, obligations and liabilities of the Parties, including any and all of the rights and interests in and under the TAC. 

The Parties will decide  which part of the expenses incurred by the Operator are being considered and be charged to the Joint Account and which are not. There will also be an Operating Committee (or Op Com) to be established by the Parties which will consist of each party’s representatives. The OpCom will  be the organ where the Parties or the Operator shall communicate upon the work program and oil and gas activities such as the Exploration program and Budget of Operating Costs which will be conducted in a certain running Calendar Year.

Thus,  before a work program is being submitted to BP Migas,  such work program will be first discussed and agreed upon through this Operating Committee mechanism. Frequently there will be instances, where Sole Risks Operations may be allowed to be conducted, if one of the party under the JOA decided to conduct exploration activities, which the other Party at such moment does not wish to participate.

If the results of such Sole Risks Operations happens to be a commercial field, the Non-Participating Party may participate, provided however, that on top of the Real Expenses and Costs which  had to be met pursuant to its portion of Participant Interest, such Non-Participating party has to pay and compensate a certain percentage payment.

Please note that the above items  are  not intended to be a legal advise nor legal opinion  in any form or manner by the Writer and thus shall not be used as a legal advise or legal opinion, but is merely intended to share information and experiences.    

Cheers 

Agung Supomo Suleiman

Law Firm Suleiman Agung & C0

Email : agungsuleiman@gmail.com

Mobile Phone : 0816830647

Do YOU WANT TO DO BUSINESS IN INDONESIA

If  you are answer is yes. this Country is eager to invite Foreign Investors to come to Indonesia. Indonesia is an archipalego with thousands of Islands from Aceh to Irian Jaya or Papua. There are many ethnics and immigrants coming to this Country. In terms of Certainty of its Law, this Country is trying hard within itself to establish Law and Justice or Law Fairness in its Society. I have been practicing as Business Lawyer in the Business Law in Indonesia for more than 30 Years, since 1979 and I am fully aware that Law Certainty is always the issue raised by Foreign Investors who comes to Indonesia. They always say that Indonesia does not have Law.

Foreign Investors has the perception that there are no consistency in the Indonesian Policy and the Rules between the Central Government and the Regional Government.  There is no good nor well coordination between the Technical Departments in Indonesia. The Laws between different Departments are overlapping and contradictory to each other which reflects weak coordination between such  Departments. They even laugh and make jokes out of the uncertain condition of Laws in Indonesia. I know such perceptions because I was assigned  as  In House Lawyer in Foreign Companies who do business in Indonesia.

So what are the Indonesian Government Response to the above?  Why is the perception like that ? Indonesia has reached a staged being a Democracy country after the students movement toppled the Suppressive Regime in  the Year 1998, when the Asian Countries was hit by the First Financial Crisis. Now the  Second Round of the Peoples Voices in Indonesia are Claiming for Equal Justice Treatment by the Indonesian Court System, where it starts from the Frame of the KPK Anti Corruption Institution  which  was strongly indicated from the Taped Recorded Conversation between Several Indonesian Legal Institution, Mafia Court Brokers and Certain Businessman  which was publicly heard in the Constitutional Court in Indonesia.

Thus the Second Agenda in this New Era of Indonesia is the Loud Out Cry to Have Legal Equal Treatment and Justice by the People of Indonesia.  The Freedom  of press in Indonesia is really  occurring these days. Even me as Business Lawyer can establish my own Blog where I can say my sayings through this blog of mine. Facebook members Voices are also having great influences and impact against the Unfair Legal Treatment to the KPK Anti Corruption Frame Victims. So the Era of Democracy and Pressure from the People through the Internet Media is really occurring in Indonesia. Yes, of course it  still needs a long process to establish Legal Fairness and Equality Before the Law.

However, since Indonesia is a Freedom Democracy Country with more than 200 Millions People, the People's Voice can no longer be ignored by the Parliament who frequently has to be pressured by the Independent Voices in  Indonesia, either by the Television Media, News Paper,  Facebook members  and all of us the people of Indonesia who NO LONGER  wants to be suppressed by the Executive, Parliament, Court Officers, District Attorneys  nor any other Institution if UNFair Treatment is felt.

In these Recent Years, many High Ranking Indonesian Officers are being captured and trialed after being  alleged by KPK  of conducting Corruption. But there are still many rumors that political involvement and discrimination upon who is being proccessed are attached to such process. The Member of the Political Parties are making political pressures  and bargaining through the Parliament among the Political Parties in making its moves against issues blow up in the Public.     

Apart of the above if you view   Jakarta, there are many High Rise Buildings being constructed,  which reflects that there are many  Construction Developers and monies being planted and parked in such High Rise Buildings, which Funds is indicated not  coming from Bank Loan but rather fresh monies. These means that  the Person who have  monies in Indonesia no longer wants to put  or  parked  their money out side  Indonesia, but they rather put their monies  in such High Rise Buildings in Jakarta, Indonesia .

These  may reflects that even though Indonesia is still uncertain in its Law and is still fighting hard to develop, Law Justice and Equality before the Law,  the Real Money owners prefer to put their money in Indonesia rather than parking it outside of Indonesia. This may occur  due to the  Global Economic  Financial Crisis  occuring  in the International Society including the USA for example which hits Lehman Brothers.

Thus Foreign Investors need also to consider the above factors and progress  developing in Indonesia and outside of Indonesia when they decide to invest their monies in Indonesia.

Cheers.
5 December 2009
Agung Supomo Suleiman   

Legal Certainty AFTA 2010

No country in this world can avoid the requirement of Legal Certainty. In this rapid Global Era, if a country wants to create Healthy Business Climate, Legal Certainty is a must. The Gaps between the Poor and the Rich in Indonesia must be narrowed, if not the Poor People will  surely be frustrated with the ongoing Unfair System. 

In the Year 2010 AFTA ( ASEAN FREE TRADE AREA) will be applied, meaning that  Indonesian Business Investors are forced  to compete with foreign Investors from the AFTA region. The following are some information articles about AFTA occuring om Ist January 2010, from the above web :
Quote:

ASEAN Free Trade Area (AFTA) is a trade bloc agreement by the Association of Southeast Asian Nations supporting local manufacturing in all ASEAN countries.
The AFTA agreement was signed on 28 January 1992 in Singapore. When the AFTA agreement was originally signed, ASEAN had six members, namely, Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand. Vietnam joined in 1995, Laos and Myanmar in 1997 and Cambodia in 1999. AFTA now comprises ten countries of ASEAN. All the four latecomers were required to sign the AFTA agreement in order to join ASEAN, but were given longer time frames in which to meet AFTA's tariff reduction obligations.
The primary goals of AFTA seek to:

• Increase ASEAN's competitive edge as a production base in the world market through the elimination, within ASEAN, of tariffs and non-tariff barriers; and
• Attract more foreign direct investment to ASEAN.

 Unquote:

Based on the above development, we all in Indonesia must be fully aware that corruption  occuring in Indonesia results :  High Costs for Business  Investors Players in Indonesia. Thus,  if Corruption is not seriously tackled by the Indonesian Authority in Indonesia, the Indonesian Business Investors will loose its leverage of  competitiveness from the AFTA Business Players in this AFTA Region. We are than Forced  to fight Corruption, to enable the Indonesian Business Players to compete with the other AFTA members in this AFTA Region. This is also significant for increasing the social welfare of the poor People in Indonesia.

Real Significant Action must be made to reform the Legal System in Indonesia. This  must be applied to all level within the Police Department, The District Attorney, The Legislative, The Advocats and Lawyers and Businessman. The President had indicated its message to make such fight against the Court Mafia in Indonesia.

Jakarta, 1 December 2009
Agung Supomo Suleiman

Level Of Trust On The Legal Institution In Indonesia

It had been quite a while that I visit this blog. I just wanted to say hello and greetings from Jakarta Indonesia. How is business at your end. I hope everything is ok. There is an important element which had to be settled in Indonesia in this coming  days. The Level of Trusts on the Legal Institution In Indonesia must really be healed. All the elements of Indonesia including the Business Society and Business Lawyer needs some assurance from the Top Level Government of Indonesia,  that they are really serious in supporting   the  Law Certainty and the Level Of Trust on the Legal Institution in Indonesia.

Without such assurance, the Business Investment Climate and the people welfare will be jeopardize. The People of Indonesia are really fed up and frustrated with the non-seriousness of the Authorized Legal Officers in handling the Corruption cases in Indonesia. Accordingly we are  all relying on the President of Indonesia to seriously instruct the Police Officers as well as The District Attorney Officers to accomodate the desires of the Indonesian People to conduct their tasks in a trusty, honest, Justice  and High Integrity manner.