the Absence of evidence is not Evidence of absence

The hardcore line the Bush’s administration utilized as moral justification for the war in Iraq was “Absence of evidence is not Evidence of absence”. It is surprising to understand that public international law, criminal law, and civil law in general has been adhering to this principle for hundreds of years. I always believe that the law cannot keep pace with crimes and violations. This is the grand weakness of the so called codification style of legal formation. In civil law countries, we so often encounter these classical issues, especially for those countries which adhere strongly to legalism and codification as the principle of lawmaking.

The core idea of law is to line down clear playing grounds/rules so that when certain suspects are being convicted, there are justifiable grounds to do so. The technical term for this is legality principle or in latin phrase nullum delictum. However, we also understand that in order to provide clear rules/laws, it takes time. The grand debate within lawmaking framework is whether we should codify the existing living norms in societies or we modify the norms in accordance with certain set of moral values. In other words should “law be the tool of social engineering” or “the reflection of moral values and judgments of living society”? Now you see, even in a more subtle discussion, we encounter new questions, which society, what society, how do we identify what people deem as morally acceptable? In reality we have different segment of societies with different, sometimes opposing, values. Another question is: if law should be the tool of social engineering, who has the right to set the moral values? Is it not equally immoral if someone or a group of people orchestrate the moral values which apply to the rest of the world irrespective of whether the substance of the law is morally acceptable eventually? In a more legalist term, which one should be given more weight? The substance of the law or procedure of the law? Hans Nawiasky postulated the former through his nomodynamics theory. I contested to this really. What s the point of having majestic physical library while there are no books inside? What s the point having too much procedure if the substance of the law does not accomodate/reflect moral values of people legally bound by it.

In the end of the day, i believe these entire quandaries boil down into one question can we assert absence of evidence as the evidence of absence. The reason why Hans nawiasky postulated the above legal theory might be because there are fears as to how difficult it is to assess the absence of evidence of moral values. He then assumed that the absence of evidence should be evidence of absence. If the law should reflect moral judgment (substance wise), it would be extremely difficult for the law maker to consider at what point should be enact a law that is legally binding to everyone. Therefore, lawmaker always assume when procedure (formal requirements) are satisfied, so is the content of the law. In practice, one you are elected as Member of Parliament, you have the right to pass certain laws irrespective of the true representation of society moral values. The current legal system accentuates so much on procedural aspects for the law. I dearly miss the concept of court of equity in the old day which was separated from the court of law. At the same time, i also understand the lawmaker’s position that it court of equity requires absolutely people with integrity to represent the moral values of society.

Now you may ask, why the heck is this piece all about? I am telling you now that the philosophical debate here affects each walk of our daily lives. The generally accepted norm of the absence of evidence is not evidence of absence is built on the philosophical ground of law as a formal/procedural tool. We all understand, and in fact this is a conventional wisdom which applies to supposedly the most democratic country in the world US, that parliament is so wrapped up with money and vested interest. Parliament members need to spend a lot of money for their political campaign. If you update yourself with Indonesian politics, we would understand that legislative political campaign is all about the money. This is true even in the case of presidential campaign, including the US’ presidential campaign. We are faced with the truth that Obama’s plan to spend less then USD 70 million simply is irrational. Hence, companies with all the money, become the most important donators. Since companies are economics creature (benefits), they donate for a purpose, lobbying the government to protect their vested interests. Can the president-elect betray companies’ interest? It is extremely difficult to run as corporations’ antagonistic president. Even if the president has the guts to, the president may reconsider such decision once he encounters the fact that he has to run for two terms period. If he betrays the corporations’ interest, he most likely will be not elected in the next term. This affects our daily lives. Consider labour rights now. Labour rights such as minimum wage, safety procedure, and health welfare are cost for corporations. Their lobbies revolve heavily around suppressing labour activities to demand the government to provide better protection. If your family members are labours the formal accentuation of the law will definitely affect your life.
Here are other examples: Criminalization on abortion, euthanasia and charity money to beggars in the street. It affects your civil liberties. In Jakarta, for instance, the local government now criminalizes the compassion for giving small change to beggars. I am not arguing this criminalization is wrong, i am arguing that the reason for this criminalization is wrong. The government does not consider the moral values of society in dealing with poverty. It considers and in fact Indonesian legal system allows this since it fulfills the formal requirements of lawmaking.

In the end of the day, i believe that the grand philosophical debate in terms of lawmaking affect many aspects of our daily walks of life. The absence of evidence is not evidence of absence. The fact that lawmaker cannot prove the moral justification for certain laws does not mean there is no justification. We condone this principle in the name of national security, efficiency in law making, and keeping law in pace, if not outpace, crimes and violations. I am not against that, i am against the idea that we fail to exhaust all possible alternatives to achieve national security, law making efficiency, and keeping the law in pace. We should probably rethink now. Probably!

Does life leave us a choice?

People often say when bad things happen in our life, it is entirely our choice on how to act on it. We can keep mourning on it or try to see it from different perspective. We can aggravate on the bad consequences or try to pick up shattered pieces of positive thing out of it. I can argue this even better with an analogy, take one coin, on your side you can argue that that coin is 1 dollar, on the other side, your friend can argue that it is the picture of a bird. Both you and your friend are looking at the same object and both of your arguments are valid, nevertheless you still argue about it intensely and none is willing to give up. The moral of this story is that life always has at least two sides of the story. Similar to that, when bad things happen, there are at least two ways of seeing it, you can take the positive side and move on OR stay there and mourn why this should happen, why me, why now...

I argue that the above proposition is amazingly ridiculous in many walks of our lives. Here is how the picture painted. For the past 3 months, I have gone through numerous astounding experiences. Money or friend, competition or cooperation, kill or be killed, ignorant is a foolish bliss or knowledge is painful satisfaction.
For years in my life, noting that i am still young, i ve been trying hard to kill my emotions, compassion, pity on poor and people in needs. My cruel world taught me to be strong and cunning.

I help my best friend and at the bottom rock of my life, he/she stabs me in the back. Sometimes it is for personal gain, sometimes because he/she has no more viable option. For instance, if my friend does not cheat my money, his/her sister will not eat that day. He/she prioritizes his/her family more than me, which i would have most likely done if i were put in his/her position. If you were me, how would you react? (Noting that you are not rich either and that money is meant to put your sister/brother into school). Will you let it go because you understand he is in a dire need of money or will you pursue that money by any means (cruel one)?
Today, i am sitting alone in the airport for more than 4 hours, partially worried because I do not have much money with me. My friend is supposed to pay her debt to me, but she is late. So i decided to wait and we converse through phone. Later i found out that her mother is suffering from cancer and she is in need of money. Worse, she probably is cheated by her investment manager. I feel a spark of pity and compassion, which i have suppressed so aggressively in my life.

In my life, i have gone through extreme transformation from a devoted christian into an atheist and subsequently a spiritual agnostic. I grow much faster than people in my age. On the age of 17 I acquaint with 50+ years friends, hanging out in socrates cafe, reading nietzsche, socrates, plato, hegel, kant, thoreau, discussing philosophy and works life. Life teaches me one thing about choice, at some point there is no way back... During my childhood as a christian i was astounded and mesmerized by the concept of heaven reward... I worked my ass off to satisfy the FAKE GOD because I am so horrified by the idea of living in hell forever and ever. I am caged and prisoned with no room for questioning ( that s how religion operates isnt it?). My religious counsel at school often told me that God provides us a choice in life. That is the reason why he put that apple tree in eden garden and allow lucifer to tempt human. My religious counsel told me otherwise human is just as good as robots with no freedom to reason and think. THEREFORE, god also provides human with a chance to choose either to believe in him (by accepting jesus as out savior) and rewarded heavenly crown or disobey him and punished hellish condemnation. They said questioning to the core (like why should we believe in god) is an abomination. I started to question myself as I was trapped in this christian hellhole. What s the point of me doing all these charities and good deeds, obeying god’s rules (the ten commandment) ? Is it because I was too afraid to go to hell?
Christians told me that life is a choice. God sets a path for us to heaven, but the choice is ours... I said BULLSHIT! WE can choose what to believe but not the consequences? It is pre-existing values. Why can I not do what god doesnt want me to, yet rewarded heaven? Christians even told me that the path to salvation is like a small path in mountainous areas (lord of the ring, where frodo walked through this small path to destroy the ring). It s small, dangerous and difficult to got through. On the contrary, the path to hell is much smoother, easier to walk on, and comfortable. THEREFORE, logically speaking, there are more people going to hell than heaven. I am so outraged now whenever a christian told me this analogy. I SAID FUCK OFF. The concept of choice is “there are thousands way to rome”, so if god is a reasonable creature, a choice should mean that there are other ways to heaven, not his way. By setting a standard of getting to heaven ONLY by obeying him leaves us no choice and no room for argument BECAUSE OTHERWISE WE WILL PUNISHED WITH ETERNAL HELLISH SUFFERING.

In the context of life, practical things, daily walks, we are preached that we can make any choice we want, to become a lawyer, a criminal, a monk, an honest or dishonest businessman. However, people often forget to tell you “oh by the way, you ll get into a shithole if you take that path”. I ve just watched several early editions of the practice. It is the serious version of Boston legal and it makes sense, very realistic. Your job compels you to choose your integrity or a young female future. He has to lie to his client, misrepresentation, violating his ethical codes, values he has been living with, values he has been preaching everyone with OR that little girl loses her life. IT s not a choice, it s like what Christianity does. Jesus says in one of the New Testaments “I am the only path of salvation, no one else go to Father if not from me”.

As Obama said in relation to Iran case, “I am outraged and appalled”. What THE FUCK ARE WE DOING? HUMANITY? FUCK IT... I am blaming all the hypocrisies and evil deeds many humans have done... LOOK at WHAT HUMAN does to people like hitler and stalin. YOU FORCE THEM to become a monster. YOU FUCKER. LIFE is a choice? YOU ARE FUCKIN CUNNING AND SLICK, hiding behind the mask of truthfulness and morality, while you are so corrupt. People like me are viewed and judged as corrupt individuals because I QUESTION THE TRUTH AND YOUR FUCKED MORAL STANDARD. LIFE leaves us a choice? You are kidding me. They always forget to tell you the consequences, dothey not? My parents say please do pursue your dream, go to law school, but we will not support you. A government says please do practice your freedom of expression, it s healthy for a well functioning democracy, but we are going to sue your sorry ass (JB J in singapore). ALL religious congregations say we appreciate differences, and other religions, BUT IT YOU ARE NOT PART OF OUR RELIGION THAN YOU ARE A SINNER, and you belong to hell. Quran says “to some people, the path of islam, will be closed forever”. Holy bible says “those who do not accept jesus christ as his saviour belongs to hell” IF I DON T FUCKIN ACCEPT YOUR VALUE THEN I AM A KAFIR/ A SINNER? You all put this fucking thick mask and pretend that you accept differences, but deep down there in your heart you are telling yourself “these people are going to hell” FUCK YOU!!
You push people like me to the corner where it is so close to falling down into a chasm and then threaten me that if I dont believe in you (mainstream values, conservative asian/javanese FUCKED UP values, religions), you will push me down. You leave me no choice but to transform into a leviathan beast to push you back and rip your heart apart for all oppressions you GAVE ME. WORSE YOU ARE SO SLICK ABOUT IT, NOT BEING UPFRONT!! This is at the point there is no way back, if i move back (if i go lenient by being compassionate) i ll die, falling down to the chasm so i have to strike to the front and kill those in my ways. KILL OR BE KILLED! Let s play your game asshole, I want to taste the sweet revenge to THE FUCKED UP MISERIES LIFE BRING UPON ME because I QUESTION. Is it not what you all have been teaching me through the history of mankind?

“Nothing else in the world satisfies human innate animal’s nature than revenge. It is the strongest motivation ever found on earth. The drive to destroy supersedes every other motivation and that include peace, social tolerance, betterment of human kind, improvement of health. That is the reason why an evil always outsmart the naive angel.”

World Trade Law: not the trade law of the world?

WTO was born on two premises. First, it is a wealth creation concept due to efficiency and comparative advantage (for comparative advantage concept, refer to my paper on AEC). Free traders promise you to be richer not rich when you join free trade. Second, free trade promises that everyone/every country benefits absolutely from the world trade by the grand postulate ‘comparative advantage’. This postulate says develop the best industries you have, even if those industries are less efficient than similar industries in the rest of the countries in the world. The two premises, HOWEVER, presuppose the existence of an equal playing field. Joseph stiglitz already knew this much better than us. During his study and career in IMF and World Bank before 1998, he concluded that Free Trade is disadvantageous for many developing and underdeveloped countries because of unequal playing field. He was particularly concerned with the issue of information asymmetry. This work won him Economic Noble Laureate in 2001.

Now, my main contention is that World Trade Law concept fails to address unequal playing field issue. My first premise is that unequal playing field is an axiomatic situation, a reality, some realist would say. It is a situation we are born with, just like being born black, chinese, disabled, and women. I am trying to borrow the concept from human rights regime. Human rights discipline dissects protections of inalienable and alienable rights based on which situations human are innately born with. If human are born as a women, certain traits of women rights, which are conditions women are born with, become inalienable and vice versa. Since the unequal playing field is an innate circumstance, conceptually, the question is whether it is fair for such that we impose equal burden to everyone/every country or we should equalize the unequal playing field? This is conceptually very troublesome! The World has not decided on this matter, and as a matter of fact would not want to decide on this matter. On the one hand, developed countries say that unequal playing field is a situation everyone is born with, not a result of their bad deeds, including economic resources; therefore, it is not fair to ask U.S or E.C. to sacrifice this advantage for developing states to one point where developing states can compete on the same level as the developed states. This situation is similar to discrimination for stewardess jobs based on height. Caucasians are generally higher than Asians; therefore it is acceptable that airline companies do not hire Asians stewardess simply because they are Asians (not tall enough). On the other hand, developing and under developed countries say those innate circumstances should be remedy before the free trade is implemented, since the TWO PREMISES of free traders presuppose equal playing field. It is unfair to ask the Asians to compete with the US or EU for steward/ess jobs by measurement of height. The same principle applies to all industries with less cutting edge advantages not because developing countries are less efficient in production, but rather because of unequal playing field. In reality, developing countries such as China, wins the market competition by imposing awfully bad labor rights and environmental protection so COSTS can be squeezed. This means all products from China can be cheaper to compete with US’ products. China claims she did not exploit the environment in such severe manner as US did for 300 more years (subsequent to industrial revolution), therefore china retains the right to exploit the environment, while US has to start remedying the damaged environment. The US claims that this equal playing field should exist in market so China has to take EQUAL responsibility for preservation and protection of the environment. China says when she actually needs the environmental resources so dearly, she was required not to exploit the environment in 1980s (the booming of China economy). If the US wishes China to conserve the environment, preferential treatment and advantages have to be granted to China PROPORTIONALLY. This is similar to the following analogy. There are 10 breads to be divided for 2 persons. One is poor, while one is rich. Equality is to give the poor and rich 5 breads each, while proportionality means giving the poor 7 and the rich 3.

Above-like issues cannot be settled because there is no understanding as to what concept of equal playing field is required: innate circumstances are advantages, therefore no effort should be required to equalize such playing field OR innate circumstances are injustice, therefore efforts must be put to equalize such unequal playing field? Nonetheless, my first premise stands on the vagueness of the equality concept: is it congruent or proportional?

Second premise, assuming we come to an agreement to unequal playing field is unjust since it is innate circumstances, how can WTO principles draw a line between when positive discrimination for disadvantaged countries are enough? When enough is enough? If WTO is to create an equal playing field than current policies must discriminate advantaged countries (such as US and EU) in unequal manners to equalize the unequal playing fields. Now the biggest “catch” is how to determine to what point WTO will stop granting such positive discrimination. How to assess? Who to assess? In a simpler analogy of bread above, do we divide the breads into 8-2, 7-3, 6-4, or 9-1? This is a very delicate and complicated question no one can come out with a clear cut answer. The difficulty lies in states’ compromise to what industries (assuming US and EU are happy to do so) they should give up for other countries’ positive discrimination, foreseeability of such industries’ business potential, occurrence of urgent needs of the industrial products, and when do they stop granting such positive discrimination. Is it even possible to stop at that point of time?

All in all, the two premises I offered above paint you an ugly picture of the WTO reality. The accomplishments of the two dilemmas above are really strenuous since there are numerous political, business, and vested interest in local industry. Global Financial crisis adds up more salt to the open wound. WTO principle are currently dominated by superpower, striving very hard to maintain status quo as to information asymmetry and unequal playing field to be able to expose natural resources and economic disability of many third world countries and developing countries. As long as they maintain information and technological gaps, WTO is not a trade law of the world; it is a product of economics tyranny which is designed to pierce the economic wound of many countries in the world softly and sophisticatedly. The needle is too soft that when it gets under our skin, we do not realize it until it nearly kills us all by rupturing our vein.

Discrimination: Treating things equally? Think Again!

One of professors I most respected in my life, Joseph Weiler, once asked: “What is discrimination?” Students in WTO class answered “Different Treatment by law”. Weiler said no. There is nothing wrong with treating people differently. Discrimination is treating similar things differently and different things similarly. Analogy... imagine now you are a policy maker, required to design policy concerning quantity of toilets in public places. Since male and female “peeability” is different, you have to discriminate male by creating more female toilets than male. If you realize in your daily lives in public places, be it in a restaurant, club, or malls, the line for female toilets are much longer and shifting of one female to another female using one toilet is much slower.

Now, we come to understand male and female are different in terms of “peeability”, therefore it is justifiable to differentiate treatment. Another VERY STRENOUS CONCEPT in discrimination issue. Male and female are different in “peeability” but not in terms of humanity, i.e. rights to breathe the air. Imagine if you are from outer space, as you get closer, you will see that human and animals are different, but you cant distinguish male and female. As you get even closer now you know human consists of male and female different skin colors, height, physiological characteristics. IF you get even closer, you will understand that even man is different in terms of sexual orientation (same thing as female). In philosophical diction, i call it comparator. What discriminates things depend on the comparator. You said male is different from female in terms of peeability not the right to breathe.

Issue of discrimination has been living side by side with human’s existence, yet little understanding and consensus is reached on this area. This is the root of many evils hitherto including Environmental protection under Kyoto Protocol, rights to legal aids, particularism versus universalism, torture, terrorism, child’s trafficking, gender discrimination, extreme poverty, illiteracy and freedom of expression. The biggest catch of environmental protection is States’ ego. U.S said China should have taken at least as much commitment as US does in reducing carbon emission. China said NO, US has been polluting our earth since industrial revolution in 17-18th century. It is not fair to ask China now (since china has just been emitting carbon few decades ago) to clean up the mess US caused by taking similar commitment. IS THIS DISCRIMINATION?

In gender issue, we are also confronted with many arguments, principally surrounding whether male and female are the same. If they are different, in what aspects they are different, i.e. physical abilities, leadership, rights to title of property or land? How to identify whether certain different treatments are due to different nature of male and female? Since physical abilities of male and female are different, we dissect Olympic competition into male and female category, especially for running and football.. But can physical abilities different justify difference in terms of rights to title of property or rights to freedom of speech? NO. This is an easy issue. What about different treatment in salary and career wise because women get pregnant and are physically weaker? So, even if a man and a woman are equally qualified for certain jobs, a boss differentiates their salaries and career development. IS THIS DISCRIMINATION?

Protection of aliens and citizens. States argue that citizens pay tax and are born with legal rights and obligations to the State, so it is fair to differentiate standard of treatment for aliens and citizens. Aliens/foreigners dont have to pay tax (VAT). If you travel to Europe and shop, you can claim for tax reimbursement in airport. The reason is because you are not enjoying the facilities the State provides for its citizen, such as free education, infrastructure, and housing subsidy. On the contrary, foreigners are discriminated in terms of quota of education in prestigious university in that country. Germany allows only 20% foreigners sitting in heidelberg (hypothetically), singapore puts quota on foreign students, irrespective of how smart the foreign student is! IS THIS DISCRIMINATION?

Rights of disabled children. Government in many countries spent 20-30% of educational budget for infrastructure that is intended to accommodate students with disabilities. In that particular country as well, as many as 20 million children do not go to school because of poverty. Suppose building special elevators costs 1000 and providing free education for 1 child is 20. The result of special elevators project helps 50 children with disabilities, while if this money is spent for free education it results in 500 normal children at school. Now if government decides to allocate this money for 500 normal children, it is different treatment. IS THIS DISCRIMINATION?

Last point, WAR. I have much passion in this issue. Suppose State A attacks State B because of abundant oil reserves in State B. State A also attacks State C with more oil reserves. When State A attacks State B, its soldiers cruelly killed the citizen and soldiers of State B because they are of different religion, ALTHOUGH STATE B doesnt fight back! Historically State C has been in tension with State B because of different political beliefs. When State A attacks State C, State C resists and it results in a huge war, a lot of lives are lost (torture, extreme gross violation of human rights), buildings are destroyed, and economy is down. Ramifications are tremendous! State A is sued B and C before an international court. State A was punished with full reparation made to B and long life embarrassment, while in the case of State C, State A only has to make partial reparation and that s all. IS THIS DISCRIMINATION?

Now the most sensitive issue in Indonesia. Chinese Discrimination. Few days ago, i argued tensely with my friend that Chinese has been discriminated until now. He said no. Bataknese is also discriminated when they come to Jakarta and deal with Javanese officials. It is normal because every race feels this sense of chauvinism. This sense of chauvinism grows into the practice of collusion. So he said, since not only chinese who was treated differently in Java, but also bataknese, there is no discrimination. WRONG! Discrimination happens because of different treatment that is measured by damage and quality of hatred. If Chinese is no treated similar to bataknese in Java, there is no discrimination amonng bataknese and chinese, but there is discrimination against chinese in Java. Discrimination doesn t happen ONLY IF the JAVANESE is treated similarly in Java as well. Now my friend gets smarter. He said Chinese in 1960 enjoys all the economic facilities while indonesian (pribumi) enjoys political careers. This political and economics trade off is meant to maintain US' support to Indonesia by means of international recognition. If Indonesia places the Chinese in political structure, it will be viewed by US as communist country. SO indonesia decided not to. Therefore, Chinese should be treated differently in terms of economy right now, such as pay more for driving license, permit, identity card and passport (not entirely true, but it still happens!). Sigh, i said this is what is wrong. Differentiating Chinese and non Chinese for its political rights based on economy differences is not correct.You can differentiate treatment ONLY IF the difference you are using is relevant to the different treatment. FOr example peeability between male and female for different treatment if number of toilets, not the right to breathe!

The concept of discrimination is strenuous subject. As long as international community and human in general cannot strike a right balance, our world will be filled with homo homini lupus. The strong one eats the weak one. The strong one dictates human rights. The strong one tells the rest what is right and what is wrong. The weak one feels dissatisfied, outraged, rebel and WAR!
My quote “War is the child of every regime, be it classical democracy in Athens or John Locke/Montesquieu’ trias politica. It is meant to create confusion and blur the line of the perfect balance of rights. When confusion is in place, human is nothing else but animals!”

You can buy human rights! Money is not everything, but everything needs money.

I have just watched the BORDER TOWN starring Jennifer Lopez. You have to watch it if you dare to claim that you care about human rights! This movie talks about the downsides of North American Free Trade Agreement (NAFTA) and, best of all; it is based on true story. An American journalist (J-Lo) was assigned to digging up story about hundreds of murder and rape cases in Juarez, Mexico. Police officers in Mexico estimated 350 women were raped and killed, but the real estimation is close to 5000 women. She found out that the rapists are protected by highest rank public officials, including the chief of police department in Mexico. Since NAFTA, many corporations establish factories in Mexico because cost of production in cheaper there. This drives many workers from the whole Mexico to come to Juarez (as the central of factories in Mexico). One of Indian families has to move to Juarez to work because they cannot pay tax for their land. The Mexican government threatens that only if they work in Juarez and earns some money, they can reclaim their land. Many girls were raped and murdered in Juarez because of centralization of workers in Juarez. Worst the governments, both American and Mexican, do NOT want to do anything about it because bad press hinders for free trade expansion. So the Mexican government does not pursue these murderers and rapists. In addition, the underlying reason for not doing anything is because the rich people (noble families in Mexico) are involved in the murders and rapes. THEY FUCKING DO IT BECAUSE THEY KNOW THE GOVERNMENT OR POLICE WILL NOT PURSUE THEM!

To start this piece of writing, I need to say that money is not everything but everything needs money... Because only with money you can buy human rights, including its protection!! This world is so FUCKED UP because human rights protection depends so heavily only economic power, vested interests. RICH PEOPLE AND CORPORATIONS GET AWAY WITH CRIMES because PROSECUTING IS BACKLASH TO GOVERNMENT. I was once involved in a TENSE discussion with my friend from Georgetown University concerning economy and development policy. I said the economy policy by incumbent world government is wrong because it seeks for instant solution and popular votes. Presidential or legislative candidates talk about human rights not because they necessarily care about it, but because it sells for their political campaign. Economics should be priority, FUCK YOUR MINISCULE WORK ON HUMAN RIGHTS IF YOU DONT HAVE MONEY! Look at China, they don’t preserve the environment before 1995 not because they don’t care but because they don’t have the money to do so. China is currently spending almost 20% of their national budget for human rights (including environmental protection). In fact, China is developing the most technologically advanced waste disposal system. The same thing happens in Mexico. The Mexican government does not have money and they need to benefit from free trade for this reason. Human rights violations are bad press. They cannot afford bad press for murders and rapes CAUSED by FREE TRADE! This vested interest SHUT THEIR FUCKING MOUTH UP!!

For those who are fighting against unjust and human rights violation, BE STRATEGIC and TACTICAL! Your miniscule work is not only worthless, but it also brings a backlash to the goal of human rights protection. In BORDER TOWN movie, J-Lo’s effort (which i consider quite big/significant) brings a backlash to the protection of human rights because it is not big enough to pressure the MEXICAN or AMERICAN government to deal with the crimes. The concept is similar to “if you dont have sufficient evidence, dont press charges because you will alert the perpetrator to run away or destroy the evidence or worst the case will be denied by the judge in a court and thanks to nebis in idem you cant press charges for the same allegation.” In politics, we understand that if you have information about the weakness of your political opponent, dont use it hastily, make sure you gather enough and use it in a timely fashion. Dan Brown says punch them in face, body, and hand at the same time, so they have to deal with all problems at the same time. If you have information about your political opponent sexual affair and educational policy, dont use them separately. Keep them. Better if you can get information about their corrupt leadership or their unwise economic policy. Use all of them at the same time, print it in the newspaper!!!

Those small damn workers of human rights are jeopardizing the fight against human rights violations because they punch slowly and softly. They use these “weapons” one by one... similar to the analogy of lawsuit or political maneuver. They are alerting the culprits to change certain policy to the grey area of the law, so it s difficult to file a lawsuit against them... I am especially outraged when people say my argument is inhumane because i dont appreciate the works of people with sincerity. I really do... But your damn miniscule and infinitely small works jeopardize the FIGHT as a whole! The next question is how to make it big? MONEY AND POWER. Imagine if the Indians family in the movie BORDER TOWN has money and power. They can push the Mexican government not to agree to the terms of Free Trade Agreement with U.S. Imagine if J-Lo has money and power, she can threatens the senator not to propose or vote for the bill otherwise J-Lo will not support (donate money) for his next political campaign. In addition, she can print all the reports about the cruelty in Mexico with her own publication company. SHE CANNOT BECAUSE SHE DOES NOT HAVE MONEY AND POWER!!!

In conclusion, HUMAN RIGHTS PROTECTIONS NEEDS MONEY. MONEY BUYS EVERYTHING. WITH MONEY COMES POWER. WITH BOTH MONEY AND POWER YOU CAN PROTECT THE WEAKEST SEGMENT OF SOCIETY! You can prevent the murders and rapes of many Mexicans. BUT BEWARE OF YOUR INFINITELY SMALL AND MINISCULE WORKS. EVEN IT YOU HAVE A GOLDEN HEART TO HELP THESE PEOPLE, BUT THE RESULT IS THAT YOU ARE HELPING KILLING THEM. YOUR INTENTION DOES NOT FUCKING COUNT, SO BE REALISTIC DAMN IT! DO IT BIG OR DONT DO IT AT ALL!

How to make the WAR makes sense and humane?

War in every essence is about revenge, demonstration of power, and military superiority and profit (of course the politically acceptable argument is that war is for protecting citizens’ safety, preventing further abuse of human rights and all heart-warming arguments). War policy maker has to set a clear and sharp objective. What to achieve? What to lose? Whom to attack? What is the message it wants to send to the world? I have just watched W today, an epic movie about George W Bush’s life, a story about the 200 years legacy of Bush. It depicts the very essence of internal struggle in Bush’s administration on the most astounding war in history.

*don’t stop reading until the last word, I will show you why my argument is very humane and reasonable!!

I think the biggest mistake of Bush’s administration is to set a dual-face objective on the war of Iraq. Freedom and Democracy, oil, and most importantly Americans’ safety from terrorist’s threat. This is why they lose ground and international support. This is why they get stuck in the ominous hellish circle of leaving Iraq with fragile democracy or seeing Americans’ soldiers and Iraqis’ civilians dying every day. War is the worst tragedy of human history. It does not sound, look, and feel good on human’s eyes. It brings unimaginable pain, chaos, destruction, and trauma. That s why I think if you need to wage a war, make it quick and hence less painful.

The biggest mistake of U.S. is not to go through the war quickly... War is like boxing and wrestling, the very essence of competition. The principle is “HIT YOUR ENEMY HARD AND FAST”. Hit them fast so that do not know where it is coming from, hit them hard so they cannot stand on their feet.

U.S. should have just come to Iraq with one message... Don’t fuck with my military power!! Don’t fuck with my citizens’ life. In reality, the U.S. doesn’t care about the freedom and democracy in Iraq. So why not just be honest about it? The problem with promising freedom and democracy is that U.S. knows it cannot possibly fulfill that. It s a different playing field in Iraq or any Middle East countries. Democracy is very much attached to local values, MOST IMPORTANTLY, democracy does not grow overnight (or in reality 4-5 years? How long can America stays in Iraq? Counts how much life and money they have spent during these 4-5 years). It is an impossible mission to bring freedom and democracy in Iraq.
Now you readers may say I am a heartless person for that despicable argument. I am saying setting the objective of the war as “DON’T FUCK WITH MY MILITARY POWER” is much better than “We would want to bring freedom and democracy before this land”. This is the calculation: If U.S. has come to Iraq by making sure Saddam is caught and killed... what they can do is bombard every single village and location suspected as Saddam’s nest. I understand that will kill a lot of civilians, but the war will end quick. In addition to above argument, you see, the nature of rebels or jihadist (as they say) is to grow exponentially out of anger, frustration, and oppression. The fact that U.S. plays it softly on war gives room and time for these potential jihadists who hate the Americans so much to grow. Suppose the inital Saddam’s supporters is 100,000 and the slow and soft war creates oppression and perpetual pain for the civilians who initially did not have anything against America, now this number (100.000) grows into 1,000,000 because the jihadists manage to persuade local Muslims to join their war fighting on the god’s path against the evil America. Slow and long agony change people’s mind, plus, the Iraqis and Muslims will tend to listen to their own kinds better than the U.S. Probably the Iraqis dreamt of freedom and democracy, but it changed because of their long agony. They now fight against U.S. Imagine if you were an Iraqi, you think dictatorship by Saddam is wrong, so you have sympathy to U.S.’s mission. During the war, your family is killed (dad, mom, sisters, brothers). You are left alone, in poverty, constant trauma, hunger, oppression. You will start hating the world! Here comes the jihadist, telling you that the culprit is U.S. and you should fight them in the name of Islam, you will definitely take it, because you have nothing to lose.
If U.S. came to Iraq with “hit them hard and fast”, killing, let s say, 200,000 civilians along with the Saddam’s cronies in 4-5 months, this tragedy doesn’t have to happen. It s cruel and against Geneva Convention and UN Charter, but practically speaking it s much better for humanity. Prolonging the war caused more civilians casualties out of suicide bombs, civil wars, more jihadists born and recruited. This number is growing exponentially into supposedly 1,000,000 now. Plus, the financial burden for war is huge... This war also costs constant political instability in Middle East politics. It also costs the significant and insane increase of oil price in the world. Money has significant co linearity to human rights. More money means less poverty, more stomach fed, less suffering, better education, better living standard.

In conclusion, if you are talking about humanity, about how many lives should not be lost, how much suffering we should ease off, how much political cost and security we should consider, how much money we should not have spent... U.S. should have just come to Iraq by the message of “DON’T FUCK WITH MY MILITARTY POWER”, hit the terrorist hard and fast, kill civilians if necessary!!! And pull off in 4-5 months. This is how the war can make sense. Most importantly, this is how the war can be much more humane and less costly!!!

Angry: unprofessional or sincere?

Myriad examples show us that emotional behaviour is unacceptable, whether it is in professional world or personal interaction. Being angry is viewed as a defect in personality. Psychologists call this bad anger management. In real life, when we are faced with circumstances where we have to agree to unjust, i.e. your boss asks you to execute a business plan which in reality causes suffering to a lot people, be it environmental damage, human rights damage, or economics damage. This business plan is untouchable by the law due to technicalities. If you get emotional in rejecting such order, you will be considered unprofessional or psychologically incapable or socially disarmed.
In my world, this problem is a lot denser. Lawyers are demanded to act professionally even when he is fully aware of the crime his client has committed. In academics life, anger is viewed as incapability to blend in certain social circles. Few days ago, i chatted with my friend from Georgetown University in Washington D.C. (united states). As a prelude, racism is dense and disguised in United States. I experienced it, my friends in US experienced it. We know it... If you are an Asian and Arabics in US and have stayed there for 10 years or more, you can feel how disguised discrimination against Arabics or Asian American is so systematic and sophisticated. Now, as an academician, you will want to write something about it. You want to reveal how the law and policy work in the direction of discrimination. My friend experienced how the ‘real’ Americans will disregard your works. You get angry because you think it is unjust, but it is so difficult to prove before a court that certain policy discriminates against you or your race. If you do, the academics institution will take action against this. They can isolate you slowly by making sure that no international legal journal would accept you writing or any press would not publish your work. Worst, they start isolating you from any self establishment programs or forums, making sure you are not gaining popularity or any academics achievement so that what you say are not credible before the public.
You see how systematic people in power restrain freedom of speech? They said you are allowed to say whatever you think is right, but they ll make sure you are a discredited academicians so that whatever you say lose credibility. If you watch boston legal, or the insider (al pacino) or read john grisham novel, you will understand what i mean. Instead of attacking the credibility of the evidence, people will start attacking your personal credibility. The insider (al pacino) depicts that big corporation will dig up every single microscopic mistakes of your lives to make sure russel crowe’s public statement is discredited. This includes his bad marriage, his failure to pay alimony.. What the hell does that have to do with the credibility of his research on nicotine addictive substance? He is truly outraged that the tobacco companies have been manipulating the medical research on nicotine effect (before 1994 nicotine was not considered addictive).
If i were in harvard or yale right now, and i start getting outraged by the systematic and disguised discrimination those institutions are employing against people like me, i will never get the chance or very difficult chance to write in any international legal journal... If US has this chronic problem, you can imagine what happen in countries like Indonesia (or any developing States in the world)... Why sincerity cant be best expressed with anger. The court or the politicians will never listen to you.... We have to come with big smiles and stupid lies pretending we are professionals while arguing genocide before the ICJ because that s deem professional? I am fully aware that emotional per se is not a solution and many people use that as a weapon to move marginalized society to fight against the government... (such as separatist movement or any group without sincere goals)..
I M OUTRAGED BY HOW THE WORLD IS CONSTRUCTED. I AM OUTRAGED BECAUSE GETTING ANGRY MEANS UNPROFESSIONAL AND UNACCEPTABLE. I AM ANGRY BECAUSE SINCERITY IS NOT VALUED MUCH COMPARED TO BIG FAKE SMILES. Eventually, people like me who are fighting for deeds and values wear out, tired, isolated, discredited and go insane. I can feel what Friedrich Wilhelm Nietzsche felt, must be painful... his whole life... trying to tell the truth, trying to save those who do not want to be saved... trying to light a dark room where people in the room dont think they are in darkness..

Review Over Indonesia's Odyssey To Rule Of Law And Democracy: Focus on the development of press freedom and justice

I. Introduction
Indonesia has long been known as “zamrud khatulistiwa” which means a diamond among States located along equator line. However, its legal system, among many things, does not seem to shine as bright as its rich natural resources. The complete absence of rule of law, corruption, autocratic regime and the unenforceable constitution are those reasons to support this proposition. During the period of the former President Soeharto’s regime (1966 - 1998), freedom of expression literally did not exist. Newspaper and radio station are completely banned from communicating any matter related to government affairs. Adding to the already aggravated situation, the government was actively abusing the anti-subversive law, which was similar to Internal Security Act (ISA) in Malaysia and Singapore, by illegal arrest and detention of government related press activities and even to enforced disappearance.
Although Indonesia has a written constitution (UUD 45), which embodies basic human rights rules, share of power among legislative, executive and judiciary and mandate of President, it was unenforceable. First, the judiciary was so corrupt that it was considered Soeharto’s crony. Second, even if the judiciary functioned well, there was no constitutional basis or jurisdiction for the Supreme Court to review the UUD 45 if there was any petition.
The most historical overturn in the 63 years existence of Indonesia took place in 1998 when university students’ discontent reached the peak point after government suppression against their reformation activities. They rallied on the street and in front of most governmental offices, including the House of Representative’s hall and president’s palace, petitioning the resignation of Soeharto. The overwhelming discontent has compelled Soeharto to resign from presidency. This event ended the 32 years autocratic ruling of Soeharto and opened a new chapter of Indonesia’s odyssey. The most notable reformation after 1998 was in judiciary and the right to freedom of press. Although it is still considered as fragile and unstable democracy, but Indonesia has moved to the right path. The amendment of UUD 45 was done four times, which resulted in the reformation of states organ composition, including the birth of constitutional court in 2004.
In this paper, I will argue that justice and freedom of press are two most important factors in creating a strong root of rule of law and democracy in Indonesia. First, I will briefly demonstrate the historical background including autocratic ruling of Soeharto’s regime, press freedom and the unenforceable constitution. Second, I will briefly summarize the birth process of constitutional court. Third, I will demonstrate that reformation in justice and right to freedom of press is the most crucial factor in achieving the democracy desired. Lastly, I will review several constitutional cases before the constitutional court to demonstrate the level of protection to freedom of press granted under post amendment UUD 45.

II. Historical background
a. Soeharto’s corrupt regime
Soeharto was a military politician; hence his administration was carried out in the same fashion. After the declaration of independence in 1945, unity remained fragile. Civil wars broke out in many remote areas as a consequence of plurality of Indonesia. Indonesia is an archipelago comprising 13,667 islands 105 covering a land area of 1,919,317 square kilometers including 93,000 square kilometers of inland seas. It has more than 200 local tribes with different culture and religious beliefs. Since Indonesia was caught in the middle of civil wars in the early years of his presidency, Soeharto’s military style of administration seemed to be the preferred model of governance. He needed to take immediate step by efficient use of force to curb civil wars and rebellious activities in many remote areas. This style of governance was employed through 1980s, where the geo-political situation had dramatically changed. Citizens were generally better educated and aware of the importance of a stable country. Civil wars and rebellious activities had significantly abated. As the saying goes “power tends to corrupt, absolute power corrupts absolutely”, Soeharto absolute military power continued to mark his regime. To maintain power, he employed repressive methods to all parties who were against him. As a corollary, press activities were heavily controlled since it was viewed as a threat to his administration. He enacted the License to Publish (SIT) policy to control all press activities. All press products were required to obtain this permit before they were published. All press activities were considered illegal without this permit. He also enacted the anti-subversive law which enabled him to curb any press activity that criticized him.
The Soeharto regime was completely corrupt since he virtually controlled all the legal machinery. To fully appreciate Soeharto’s corrupt, morally bankrupt regime, one only has to visit the Soeharto museum at Tam Mini, a park in Jakarta, which features exhibits from all regions of Indonesia. The Soeharto museum is filled with many gifts given to Soeharto during his reign. It is filled with priceless jade carvings, works of expensive art from all over the world owned by Soeharto and a floor devoted to Soeharto and his late wife Madame Tien.
In economic activity, the Soehartos made a massive number of improper loans to finance their cronies. Siti, Soeharto’s daughter, was known as "Madame Ten Percent", reflecting her share of all public contracts. Soeharto and his family accumulated a financial empire estimated at more than $25 billion. The Soehartos held an interest in major corporations controlling virtually every facet of daily life in Indonesia. It was virtually impossible to conduct business in Indonesia without dealing with Suharto, his family, and their business cronies. The Indonesian economic system was a complex web of corrupt deals and political payoffs.
Most natural resources were located in less populated areas. Soeharto extracted these resources for use in the more heavily populated areas, particularly Java. In the process, the central government controlled local revenues and finances leaving little power for provincial and local governments. The Indonesian banking sector was poorly supervised by the central bank, Bank of Indonesia. These circumstances led to the collapse of the Indonesian banking sector resulting in economic chaos in Indonesia. The effects of the financial collapse have included massive poverty, a high rate of unemployment, and starvation for millions of Indonesians. Deadly riots and political protests were common. Soeharto also controlled the legal system, including all judicial appointments. One author even asserts that judges earned a living by selling justice to the highest bidder. The legal system was simply another arm of Suharto's corrupt machine.
b. Historical perspective of Press Freedom during Soeharto regime
The Basic Press Law of 1966 (1966 Press Law) emerged under Soeharto's "New Order" Government in the midst of the attempted takeover by the Indonesian Communist Party and the restructuring of government. The 1966 Press Law guaranteed that journalists would not be subjected to censorship under Article 4. In addition, the first clause under Article 5 granted freedom of the press as a basic human right. The guarantees provided in Articles 4 and 5 were significantly undermined by Article 11 of the 1966 Press Law, which restricted publications only to those not contrary to "Pancasila". The 1966 Press Law further limited press freedom by requiring that every publication acquire a License to Publish (SIT), pursuant to Article 20.
Despite the seemingly broad guarantees grounded in Articles 4 and 5, the government's reaction to the press over the next sixteen years demonstrated a retreat from law that proved detrimental to journalists. In particular, the government banned many publications during this period either by revocation of licenses or by mandate from the Operational Command for the Restoration of Security and Order (Operational Command). Bans on publications were especially prevalent during elections and student demonstrations. Government officials both instructed journalists as to which current events they could report on and attacked journalists personally via imprisonment, detention, and warnings.
Act No. 21 of 1982 (1982 Press Law) incorporated and enacted revisions and amendments to the 1966 Press Law. An additional clause to Article 13 in the 1982 Press Law requires that press publications obtain a Press Publication Business License (SIUPP) from the Minister of Information. The Minister of Information leads the Press Council, which oversees the development and control of the National Press, by ensuring that the press preserves the national interests of Indonesia. The SIUPP clause replaced the SIT clause in Article 20 in the 1966 Press Law; however, the consequences of publishing without a license under either clause remained the same because both resulted in criminal penalties. In addition to granting SIUPPs, the Minister of Information may also revoke licenses pursuant to Article 33 of the Minister of Information Regulation No. 1 of 1984 (1984 Ministerial Decree).
Of even greater concern in the 1982 Press Law was the government's revised Paragraph 2 under Article 6 of the 1966 Press Law that expanded Press Council membership to include government officials. In effect, this revised clause "concerning membership of the Press Council made the Government's position stronger]in controlling the Council, and thereby the Press." Despite the enactment of the 1982 Press Law, limitations on reporting current events remained strong as the government continued to utilize similar tactics exercised under the 1966 Press Law to curb press freedom.

c. The Unenforceable Constitution
It seems that everybody knows that law in Indonesia, if enforced at all, is not enforced consistently. When it comes to constitutional law, however, the situation seems even worse. The courts, prior to 2004, do not even have jurisdiction, not even in theory, to hear any constitutional claims. The problem was not that courts failed to enforce the Constitution because of inefficiency, incompetence or corruption. Rather, the problem was that no court had jurisdiction to enforce constitutional law. There was no constitutional court in Indonesia until 2004 and the general courts, including the Mahkamah Agung [MA] or Supreme Court, lack constitutional jurisdiction. One could therefore say that constitutional law was unenforceable in Indonesia before 2004.
Gary Bell argues that it is possible to have a stable society and the Rule of Law without a fully enforceable constitution. He cited France experience. In France once a law is adopted, its validity can never be contested no matter how clearly unconstitutional the law is. The courts of law have essentially no constitutional jurisdiction (except for the review of search and seizures in the criminal process) and cannot review the constitutionality of laws or of government actions. Since 1958, there is in France a Constitutional Council (Conseil constitutionnel) which may review bills before they become laws, but it may do so only at the request of politicians, not of ordinary citizens. Once a bill passes through Parliament, the Council has no jurisdiction. The Declaration of the Rights of Man and the Citizen which is indirectly included in the French Constitution through a mention in its preamble cannot be invoked by citizens whose individual rights are violated. Notwithstanding this, no one would dare say that France does not respect the Rule of Law or that France has no constitution or no constitutional law. Unenforceable constitutions can be significant political and legal symbols.
I agree that it is possible to have a stable society in countries like France without fully enforceable constitution. However, when it comes to Indonesia prior to 2004, it is a different case. Freedom of press and judicial system are the two important factors that draw that line. First, starting from 1966, French has not been ruled by any autocratic regime, while Indonesia was ruled by Soeharto autocratic. Second, Soeharto actively invoked the anti-subversive law, while there was no similar law passed in France. Third, Indonesia judicial system was so corrupt during Soeharto’s regime that it was considered another arm of Soeharto’s corrupt machine. Even to date, similar nature of legal system still exists, though arguably to a lesser extent. Jared Levinson asserted that “In this republic, corruption is the child of every regime”. The unreliable nature of the Indonesian legal system has been a major factor cited by business people for not wanting to invest in the nation. In June 2000, Wahid (Indonesia former president) met with US businesspersons who demanded that the legal system be reformed before they would invest in Indonesia. Court decisions are mainly a function of money and politics, just as they were under the Suharto regime. A well-connected, well-financed insider is likely to prevail even if the written law is to the contrary.

III. The two most important pillars of rule of law and democracy in Indonesia: Justice and Freedom of Press
a. Press Freedom for democracy
I find that the development of democracy is very closely related to freedom of press. Press is the fourth estate after executive, legislative and judiciary. It is power. If a nation is to enjoy the political and economic advantages enabled by the rule of law, powerful institutions must be open to scrutiny by the people. If technology and science are to advance, ideas must be openly shared. To create a democratic society is, among many things, by creating accountable government. Freedom of the press and independent news are therefore essential to this process. That is why Thomas Jefferson, the primary drafter of the American Declaration of Independence, insisted that the U.S. Constitution include the public's right to free speech, a free press, and public assembly. "Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter," he wrote in 1787. That is not to say that the newspapers were kind to him when he became president. He had his share of embarrassing exposés. But Jefferson remained steadfast in supporting even painful scrutiny by the media, because he recognized that without such accountability and unfettered flow of ideas, a nation's creative growth is stunted and its people are not free.
According to Ellen Hume, an independent media sector serves four vital roles in a democracy. First, it is a watchdog on the powerful, holding them accountable to the people. Second, it casts a spotlight on issues that need attention. Third, it educates the citizens so they can make political choices.
The U.S. experience in press freedom has, in one sense, been experienced by Indonesia after UU No.40/1999 was passed. This was shown by the rampant growth of press companies in Indonesia which is estimated to be more than 8,000 by now. This number is significantly high compared to the number of press companies during Soeharto regime which is estimated less than 15. Moreover, government has less control now evident by no-permit requirement of press activities. In Indonesia, press acted as a powerful watchdog during 2004 presidential election process. Press clearly described the necessary backgrounds, policy making orientation and leadership quality of all presidential candidates. This provides citizens with better information to choose which leader suits them the most. Press has essentially provided better political education for people during the 2004 election. Press function to cast spotlight on issues that need attention was demonstrated very well on the issue of Chinese minority discrimination in Indonesia. Before 1998, practice of Chinese culture, including language, cultural performance and the use of Chinese name were highly discouraged if not prohibited. During the 1998 financial crisis and reformation era, a shameful incident occurred where Chinese properties were looted and a lot rape cases to Chinese were reported. It is not that this discrimination did not happen in the past, but there is no means of dispatching such information nationally. After 1998, a lot of attention was brought to Chinese minority rights, therefore, effectively putting pressure on government to do something about it. During the President Abdurrahman Wahid administration, all discriminations, including prohibition to practice language were abandoned. All regulations which constitute this type of discrimination were revoked. Press ability to dispatch information about Chinese discrimination brought about sentiment among many people who think it is not right to do so, and therefore creating general consensus on what government should do.
In many examples, press has also put a great deal of pressure to public institutions, such as State Financial Auditor (BPK), Corruption Eradication Commission (KPK) and Supreme Court, which was untouchable by press in Soeharto regime. Sharp criticisms and expression of discontent are common in newspaper and television news editorial. The success of the 2004 first direct presidential election, which marked the democracy celebration in Indonesia, was also contribution of press. Although corruption still exists, but prosecution has been aggressively undertaken in recent years. People are generally aware of figures who are involved in corruption and hence creating bigger pressure for prosecution. In fact, harsh comments, such as alleging president of incompetency and violating constitution are made publicly available in newspaper with clear identity of the commentator.
b. Why press freedom and not economics first?
Some middle-low class income citizen argued that it much better to have no press freedom than to suffer from abject poverty. Some argued that reformation costs so expensively. It is a generally accepted fact that poverty and unemployment increased after 1998. One would argue that it was because the financial crisis took place. However, general argument to the contrary would be that democratization costs a lot. First, reformation requires reshuffling of many civil servants including the top officials. Since Indonesia recognizes life time pension, all downsized civil servants will be fed by the government for life time. Second, amendment of the constitution took most of the attention after 1998. It meant neglecting several ongoing financial projects and setting aside huge amount of national budget for all the People’s Consultative Assembly (MPR) meetings. MPR consisted of approximately 700 members all of whom are paid for regular meetings. Given the above explanation, it will be rationale to prioritize economics first post 1998. However, I will argue that press freedom is paramount to economics first argument.
Indonesia has impressive record on its natural resources, having oil and gas as the biggest export products. Moreover, its agricultural products are also abundant. The old saying goes “You can throw any remaining seeds you eat anywhere else in Indonesia and it will grow”. However, welfare of the citizen is not well reflected, not before 1998 or post 1998. The core of the problem is the complex web of corruption and inefficient bureaucracy. Imagine that gas natural resources are extracted from Papua. The result would have been going through several stages of administrative process before it reached the central government and reformulated in national budget. Given the fact that Indonesia has 13,000 islands, it is tremendously difficult to micro manage every sector. All these supposedly rich natural resources evaporated along the way to the central government.
Unlike its small manageable neighbor Singapore, Indonesia could not utilize economics first policy. First, the Singapore was not abundant in natural resources; therefore it was plausible in 1965 that the government decided to strengthen its economic policy. On the contrary, during the declaration of independence, Sukarno was very well aware that Indonesia was rich in natural resources, which made it the prime target of colonization. Second, all these resources were wasted because of corrupt individuals and ineffective bureaucracy; therefore, it is reasonable if all efforts are put in strengthening the rule of law and liberating press. If we draw a comparison to China, then will this argument crumble since China is big in size and rich in natural resources? China in its economic policy also resembles Singapore. China, as a socialist country, puts public welfare as its number one priority, therefore putting economics first for the many rather than press freedom for the few. What distinguishes Indonesia and China in this respect is the culture of ‘hard work’. It is well known that China used to and still has the cheapest and most effective labors. Given the large population in China, the number of manpower is also large. China’s capability to build its economics fast and resiliently gave it the advantage of being socialist and tyrannical. It abandoned environmental concern because it is expensive to preserve the environment. It abandoned human rights concern, good governance and so forth to focus all government policy to economics development. After this strong foundation of economics has been built, it started to use this financial power to fix what has been sacrificed for economics. For example, in 2006-2007, China spent almost 20% of its national budget to deal with sanitary and environmental issues, including major reconstruction on its sewer system, which was the major factor of SARS (avian flu) epidemic. After 1990, China started to liberate itself by exposing itself to international community. Press has increasingly been active. Humanitarian law became a serious concern. Environmental protection became an important agenda in government (ratification of Kyoto Protocol). In a short and simplified way of saying it, the choice is economics first or democracy first? If economics come first, then all other factors have to be removed from the picture, including democracy, environmental concern and human rights. In Indonesia context, it was unlikely to build the nation based on economics first policy because it lacks the advantage of hardworking culture and effective bureaucracy. China quickly achieved of economics power immediately after 1990 to prepare itself for globalization. This economics power was used to fix its environmental condition, human rights protection structure and compliance with international community value.
c. Judicial reform
A democratic nation will not function well if it is still governed by a cluster of corrupt individuals. Judicial reform is essential in achieving the true value of the rule of law. Constitution can only be protected by people with integrity. Although the picture of Indonesia judicial system is still tainted but significant improvement is noticeable. The rule of law can only be achieved if Indonesia continues its effort in judicial reform. As has been established in the previous section of this paper that judiciary in Indonesia is governed by a long tradition of corrupt judges.
The judiciary reform should focus on selection and individual welfare system not structural reformation. I assert that the current system in place is sufficient. The problem with the judiciary is only on its individuals. Best graduate law students from best law schools in Indonesia do not prefer judiciary career. This is a paradox to legal career in many countries including U.S. where judges are commonly appointed among successful and respectful lawyers or legal academicians. Incentives on judiciary careers should be strengthened, in the sense of welfare and prestige, so that young talented legal minds can find judiciary career worthy. Furthermore, there is an urgent need of major review on current judges as to their quality and competence. There should be a tighter and more sophisticated fit and proper test for judges and judiciary related career such as court clerks. At this point, Singapore’s approach to judiciary system is worth a lesson. The Chief of Supreme Court judge received approximately S$ 1 million annually on contractual basis. This amount is bigger than the accumulated amount of three chief Supreme Court justices of Canada, Australian and U.S. I am not suggesting that Indonesia chief justice should be paid that amount. I am suggesting that the current amount of salary does not create incentive basis for judiciary career. Magistrate Court Judges are treated as civil servants with average salary of Rp. 1 million to Rp. 2 million per month (which is equal to S$300-400). Under Law No.19/2008, the chief justice of Supreme Court in Indonesia receives approximately Rp.55 million a month (which is equal to S$ 7,000-8000), while an established lawyer in Indonesia can earn 10 to 20 times bigger than that amount per month. Moreover, the judiciary career in Indonesia is not viewed as a prestigious one. People generally avoid dealing with judges or courts. This is a negative factor to encouraging best law students to enroll as a judge.
IV. Conclusion
Indonesia historical background indicates the importance of press freedom and judiciary reform. Tyrannical and autocratic rulings of Suharto have created a long tradition of ‘political apathy’. Citizen need to be educated of their political rights. Government military system needs press to serve as a watchdog. Furthermore, the expansive geographical condition of Indonesia disabled fast and effective communication in the past. This serves as a detriment to democracy, as many people are simply not aware of what is happening within the central government, including the new law that is passed and court rulings. When press was liberated in 1999, significant improvement was noticeable. This improvement includes transparent court reports, spotlight on sensitive issues such as Chinese minority rights and pressure on legislative to pass laws that serve the needs of the many.
Judiciary reform is also necessary. This reform should focus on judiciary career welfare and selection system. Judges should be selected from the most capable individuals. This system will eventually create a strong incentive basis and therefore improves the overall image of judiciary career. Best graduate law students can then be encouraged to take part in judiciary career. The combination of these improvements will strengthen the rule of law and democracy in Indonesia

Hak Asasi Manusia Universal Yang Bersifat Lokal: Studi Terhadap Hak Kebebasan Berekspresi Dalam Pasal 19 ICCPR

I. LATAR BELAKANG
Hak kebebasan berekspresi sangat erat kaitannya dengan nilai budaya, ideologi, dan agama sebuah negara. Misalnya, Singapura menganut prinsip perlindungan hak kebebasan berekspresi yang sangat minimum, terutama terkait dengan hak kebebasan berekspresi terhadap kinerja pemerintahnya. Sarjana hukum dalam bidang comparative constitutional law berpendapat bahwa alasan Singapura melindungi para pejabat negaranya adalah karena pencemaran nama baik terhadap pejabatnya mempunyai dampak yang besar terhadap kinerja pemerintahannya. Selain itu, pencemaran nama baik mempunyai dampak (damage) yang lebih besar terhadap seorang pejabat daripada seorang warga masyarakat biasa. Menurut Kausikan, pandangan ini berseberangan dengan prinsip yang dianut di Amerika Serikat yang berpendapat bahwa seorang pejabat publik (public figure) karena jabatannya harus menanggung resiko kritik dan pelanggaran privasi dari media massa. Oleh karena itu, pencemaran nama baik merupakan resiko yang akan sering menimpa seorang pejabat publik. Perbedaan ini terjadi karena alasan historis masing-masing negara Amerika Serikat dan Singapura dimana kesuksesan Singapura selalu dikaitkan dengan sifat diktator Lee Kuan Yew pada tahun 1960an, sementara Amerika Serikat sukses sebagai “champions of human rights” dikarenakan umur konstitusinya yang tua (350 tahun) dan reputasi Mahkamah Agung Amerika Serikat dalam pembentukkan nilai-nilai hak asasi manusia (HAM) internasional.
Contoh lain yang aktual di Indonesia adalah kebebasan berekspresi yang dibatasi dalam konteks memeluk sebuah agama atau aliran kepercayaan tertentu. Pada tahun 2008, pemerintah Indonesia mengeluarkan Surat Keputusan Bersama (SKB) Menteri Agama, Jaksa Agung, dan Menteri dalam negeri masing-masing No.03 Tahun 2008, No. KEP-033/A/JA/6/2008 dan No.199 Tahun 2008 tentang Peringatan dan Perintah Kepada Penganut, Anggota dan/atau Pengurus JAI dan Warga Masyarakat. SKB ini keluar sebagai respons terhadap kondisi masyarakat yang meresahkan. Kondisi ini disebabkan oleh ditetapkannya fatwa Majelis Ulama Indonesia (MUI) bahwa Ahmadiyah adalah salah satu aliran sesat dan menyesatkan. Fatwa MUI ini memicu terjadinya ketegangan antara penganut Ahmadiyah dengan warga Islam di sekitar tempat tinggal mereka yang berujung pada intimidasi terhadap para penganut Ahmadiyah, pengrusakan rumah ibadah mereka, tidak diizinkannya para penganut Ahmadiyah untuk beribadah di mesjid, dan tindakan kekerasan terhadap para penganut Ahmadiyah. Menurut hemat penulis, akar permasalahannya adalah pada intervensi pemerintah dan MUI dalam hal mengambil posisi mengkriminalisasi atau mengharamkan suatu kebebasan berekspresi agama. Hal ini tidak dilarang di negara yang lebih progresif seperti Amerika Serikat, dimana kepercayaan atau agama bukan merupakan urusan negara, sehingga aliran kepercayaan apapun tidak dilarang kecuali jika hal tersebut menyebabkan gangguan keamanan dan sosial yang signifikan. Perbedaan ini terjadi di Indonesia dan Amerika Serikat karena nilai hidup yang sangat berbeda dalam konteks nilai keagamaan.
Dari kedua contoh diatas, dapat disimpulkan bahwa dilema terbesar dalam hak kebebasan berekspresi adalah perbedaan nilai budaya, ideologi, dan religius sebuah negara yang menyebabkan perbedaan definisi, paradigma, dan tingkatan perlindungan hak kebebasan berekspresi. Hal yang harus diingat adalah bahwa Indonesia dan Amerika Serikat merupakan negara penandatangan International Covenant on Civil and Political Rights (ICCPR). Dalam makalah ini, penulis akan menjabarkan tinjauan historis terhadap terbentuknya hak kebebasan berekspresi dalam paradigma sarjana hukum internasional, pertentangan dua paham mainstream tentang HAM, dan memberikan masukan terhadap pentingnya pengaturan hukum internasional yang bersifat lokal dalam konteks hak kebebasan berekspresi.
II. MAKNA KEADILAN DALAM HAK ASASI MANUSIA UNTUK BEBAS BEREKSPRESI
A. Sejarah terbentuknya hak kebebasan berekspresi
Pasca Perang Dunia kedua dan tragedi Holocaust, disiplin HAM internasional menekankan pentingnya konsep non-diskriminasi sebagai prinsip yang fundamental. Prinsip ini terkandung dalam berbagai konvensi tentang HAM. Prinsip ini juga berlaku untuk semua orang dalam semua aspek sosial terutama melarang adanya diskriminasi berdasarkan jenis kelamin, ras, dan warna kulit. Prinsip non-diskriminasi ini disempurnakan oleh prinsip kesetaraan (equality), seperti bunyi pasal 1 Deklarasi Umum Perserikatan Bangsa-Bangsa (PBB) tentang HAM “Semua manusia dilahirkan bebas dan setara dalam hal harga diri dan haknya.” Pentingnya prinsip non-diskriminasi dalam hak asasi manusia dipahami dengan baik oleh banyak pihak. Alasan yang mendasari bersifat historis yaitu bahwa sejarah manusia kaya dengan tindakan diskriminatif dan tidak toleran yang menyebabkan terjadi genosida dan kejahatan terhadap kemanusiaan. Oleh karena itu, pendapat bahwa diskriminasi dan rasisme merupakan pelanggaran harga diri manusia dan kesetaraan merupakan pendapat yang tidak mendapatkan pertentangan dari negara beradab manapun.
Hal yang tidak lumrah diketahui kebanyakan orang adalah bahwa institusi dan pengadilan internasional maupun nasional bersikeras bahwa hak kebebasan berekspresi merupakan unsur sentral dari rezim hak asasi manusia. Pendapat semacam ini muncul dari sejarah yang menggambarkan tragedi-tragedi terbesar di dunia untuk waktu beberapa abad yang dikarenakan kontrol absolut terhadap kebebasan berekspresi. Contoh dari tragedi tersebut adalah perbudakan dan perdagangan budak, metode penyiksaan dalam interogasi, Holocaust, genosida di Kamboja maupun Rwanda, rezim Stalin. Scammell berpendapat bahwa “kontrol terhadap kebebasan berekspresi merupakan alat penunjang kekuasaan. Tanpa alat tersebut, kekuasaan akan sangat susah untuk dipertahankan. Kontrol tersebut adalah alat untuk merebut dan mempertahankan kekuasaan baik kekuasaan seorang individu, institusi, maupun negara. Alat ini merupakan esktensi dan manifestasi dari kekuatan fisik ke dalam alam pikiran dan jiwa. Kontrol ini mencakup semua bentuk intervensi terhadap hak asasi individual untuk berpendapat dan mengungkapkannya tanpa rasa takut. Kontrol tersebut dapat dilakukan dengan lembaga sensor yang sangat sukar dan kompleks untuk diatasi.
B. Mengapa hak kebebasan berekspresi penting?
Memahami permasalahan yang dijelaskan dalam paragraf sebelumnya, pentingnya hak kebebasan berekspresi menjadi fokus pengaturan dalam berbagai pengadilan internasional atau institusi yang terkait. Pada tahun 1946, yang merupakan sesi pertama United Nations General Assembly (GA), GA mengadopsi Resolusi 59 (I) yang berbunyi “Kebebasan memperoleh informasi merupakan hak asasi manusia yang fundamental dan... pilar dari semua hak kebebasan yang dijunjung tinggi oleh PBB.” Hal senada juga disampaikan oleh beberapa pengadilan dan badan subsider PBB. Contoh, UN Human Rights Committee menyatakan bahwa “Hak kebebasan berekspresi merupakan hak prioritas dalam masyarakat yang demokratis.” Pentingnya hak kebebasan ekspresi juga diutarakan oleh The European Court dalam kasus Handyside, serta Inter-American Court of Human Rights.
Jaminan terhadap kebebasan berekspresi mempunyai tingkatan pengaruh yang berbeda terhadap medianya. Media merupakan fokus penting dari perhatian para aktivis hak kebebasan berekspresi. Ini adalah medium pertama yang akan dikuasai pemerintah, kekuatan ekonomi, dan politik untuk mempertahankan kekuasaannya dan mematikan gerakan oposisi. Sebagai kunci utama dari kebebasan berkomunikasi dan berekspresi, kekuatan dari media untuk berfungsi secara independen sangat menentukan tingkat kebebasan berekspresi di sebuah masyarakat. Amyrta Sen membuktikan hal ini dengan mengambil contoh Chinese famine pada tahun 1958-1961, dimana sensor dan penghilangan akses kepada informasi berakibat sangat buruk bagi masyarakat miskin. Lebih buruknya lagi, hal tersebut menyebabkan pemerintah salah mengambil langkah dalam perumusan kebijakan yang berakibat pada meninggalnya jutaan jiwa. Amyrta Sen berpendapat bahwa “Tidak akan ada tragedi kelaparan jika ada kebebasan pers/media...”
Contoh bentuk sensor kepada media adalah dengan menentukan content yang diizinkan untuk dalam pemberitaan media massa, kepemilikan media massa, kontrol terhadap editorial, kontrol terhadap pihak yang mempunyai akses terhadap frekuensi radio dan jangka waktunya, serta apa yang boleh dipublikasikan serta apa yang tidak. Kebebasan berekspresi memungkinkan masyarakat untuk menuntut hak kesehatan, hak terhadap lingkungan yang lebih bersih dan kebijakan yang efektif dalam mengurangi angka kemiskinan. Hal ini juga meningkatkan kualitas demokrasi dan kepercayaan publik terhadap pemerintahan yang sedang berkuasa serta meningkatkan transparansi yang berakibat pada pencegahan terjadinya korupsi. Dengan kata lain ketika kekuatan media massa dikekang, maka realisasi dari perlindungan atas hak lainnya akan sulit.
III. PENGATURAN INTERNASIONAL HAK ASASI MANUSIA
Pengaturan dalam konvensi internasional yang hendak penulis angkat dalam tulisan ini dapat ditemukan pada pasal 19 ICCPR. Pasal 19 ICCPR menyatakan bahwa:
1. Setiap orang berhak mengeluarkan pendapat tanpa bentuk intervensi apapun.
2. Setiap orang mempunyai hak kebebasan berekspresi. Hak ini termasuk kebebasan untuk mencari, menerima, menyampaikan informasi tertentu dalam bentuk apapun baik secara lisan maupun tulisan, dalam bentuk seni atau media lainnya sesuai pilihan dan kehendak orang yang bersangkutan.
3. Hak kebebasan berekspresi yang dimaksud ayat 2 harus dilaksanakan dengan tanggung jawab tertentu. Oleh karena itu, boleh dibatasi, namun pembatasan ini harus dalam bentuk peraturan hukum dan perlu:
a. Untuk menghormati hak atau reputasi pihak yang lain
b. Untuk menjaga keamanan nasional, ketertiban umum, kesehatan publik, atau moral.

Salah satu permasalahan dengan pasal ini adalah (1) tidak ada pemisahan yang jelas antar hak mengeluarkan pendapat dengan hak (ayat 1) dengan hak berekspresi dan (2) diskresi ada di tangan penguasa untuk menentukan kondisi keamanan nasional, ketertiban umum, kesehatan publik, atau moral. Pengaturan terhadap syarat-syarat penguasa boleh mengecualikan hak kebebasan berekspresi adalah (1) tidak boleh membahayakan kelangsungan hak itu sendiri (2) pengecualian tersebut harus diatur oleh hukum (3) Pengecualian ini hanya boleh diterapkan kepada salah satu pasal ,19(3) (a) atau (b) (4) Harus ada alasan tentang pentingnya negara atau penguasa melakukan pengecualian tersebut.
Penulis berpendapat bahwa keempat faktor di atas merupakan masalah utama dari kompromi antara pengaturan universal ICCPR dengan penyesuaian dengan nilai lokal masing-masing negara anggota ICCPR. Pengaturan semacam pasal 19 ICCPR menciptakan dikhotomi dengan memberikan ruang interpretasi yang sangat besar bagi masing-masing negara anggota, namun di lain pihak juga menetapkan syarat-syarat yang ketat bagi pengecualian pelaksanaan hak kebebasan berekspresi.
IV. DILEMA PENGATURAN HAK ASASI MANUSIA DALAM KONTEKS HAK KEBEBASAN BEREKSPRESI
A. Universalist Versus Cultural Relativist
Pertentangan besar dalam rezim pengaturan HAM adalah antara penganut paham universalist dan cultural relativist. Paham universalist mengatakan HAM merupakan hak yang sangat mendasar dan pada hakekatnya pasti semua manusia memiliki nilai-nilai yang sama yaitu kemanusiaan. Contoh, tidak ada seorang manusia yang setuju kepada genosida, dimana 500.000 nyawa dibunuh hanya karena warna kulit, agama, ras, ataupun pandangan politik tertentu. Dasar inilah yang menjadikan nilai HAM pengaturannya harus universal. Sementara itu, penganut paham cultural relativist mengatakan bahwa diversitas kebudayaan merupakan sebuah realita. Universalisme tidak harus dipahami sebagai penyamarataan (uniformitas).
1. Prinsip ideal konsep universalisme
Pertanyaan utama adalah apakah semua prinsip hak asasi manusia benar-benar bersifat universal? Bagi sarjana negara Barat, relativisme budaya hanya merupakan justifikasi bagi para diktator untuk mempertahankan kekuasaannya. Para sarjana tersebut berpendapat bahwa para diktator yang melakukan pelanggaran HAM berat adalah sebagian dari kalangan yang mendukung argumen cultural relativist. Globalisasi atau modernisasi kebudayaan telah menyebabkan globalisasi nilai-nilai HAM. Oleh karena itu, tidak mungkin ada kebudayaan yang bertahan dalam bentuknya yang murni di negara manapun. Bukti dari pernyataan diatas adalah tidak ada sebuah negara pun yang menolak prinsip Universal Declaration of Human Rights. Pengakuan terhadap diversitas kebudayaan sebagai fakta empiris tidak bisa menjustifikasi pelanggaran HAM berat. Pembunuhan adalah pembunuhan baik itu dilakukan di Amerika Serikat, Asia, atau Afrika. Tidak ada satupun negara di dunia yang mengklaim bahwa penyiksaan (torture) merupakan bagian dari warisan kebudayaan mereka. Semua orang mempunyai hak untuk diakui sebagai seorang manusia atau individu di hadapan hukum.
2. Tidak Semua HAM Bersifat Universal
Penulis berpendapat bahwa pandangan kaum sarjana Barat kurang tepat atau kurang spesifik dalam perumusan idenya. Alasannya adalah karena gradasi HAM sangat luas, mulai dari genosida, hak untuk tidak disiksa, atau didiskriminasi karena warna kulit, hak turut serta dalam pemerintahan, hak memeluk agama, hak mendapatkan pendidikan dan penghidupan yang layak dan wajar. Gradasi ini menyebabkan tingkat perlindungan yang berbeda-beda antara satu HAM dengan HAM lainnya. Contoh, genosida, kejahatan kemanusiaan, agresi militer, dan perang merupakan beberapa contoh kejahatan internasional (international crimes) berdasarkan pasal 5 Statuta International Criminal Court. Implikasi terhadap status atau label kejahatan internasional melahirkan prinsip jus cogens dan erga omnes obligations. Berdasarkan putusan International Court of Justice (ICJ) dalam kasus Barcelona Traction tahun 1980, ICJ menyatakan bahwa tergolongkannya sebuah kejahatan dalam kategori pelanggaran prinsip jus cogens melahirkan jurisdiksi universal terhadap kejahatan tersebut. Artinya, semua negara di dunia mempunyai hak dan kewajiban untuk menyidik dan menuntut pelaku kejahatan tersebut. Dalam kasus tersebut, ICJ juga menyatakan bahwa kejahatan yang menimbulkan kewajiban erga omnes adalah jenis kejahatan yang menyentak rasa kemanusiaan dan keadilan semua orang. Kejahatan yang dijelaskan di atas mempunyai gradasi yang berbeda dengan hak untuk mendapatkan perlakuan hukum yang sama. Perbedaannya adalah ICCPR tidak memberikan status jus cogens atau peremptory norms terhadap hak tersebut. Meskipun ada beberapa sarjana yang mengatakan bahwa hak mendapatkan perlakuan hukum yang sama diakui dalam hukum kebiasaan internasional (customary international law). Gradasi yang lebih rendah daripada hak persamaan hukum adalah hak berserikat (right to assembly) atau hak berkumpul, dimana perlindungan hak ini masuk dalam prioritas yang rendah. Artinya, jika terjadi konflik antara hak-hak di atas maka hak untuk tidak dibunuh karena ras (genosida) akan lebih diprioritaskan daripada hak untuk berserikat.
B. Dikhotomi Pemilahan HAM
Pandangan sarjana Barat tepat dalam konteks pelanggaran HAM berat atau prinsip jus cogens, namun tidak tepat untuk hak-hak seperti hak berserikat atau berekspresi. Kelemahan pendapat seperti itu adalah tidak cermatnya menarik garis pemisah antara hak yang bersifat universal dengan hak-hak yang sangat terkait dengan nilai kebudayaan, ideologi, dan agama sebuah negara. Pemilahan hak ini sangat penting dalam memberikan perspektif HAM internasional yang bersifat lokal. Kepentingan yang penulis maksud adalah terkait dengan perlindungan HAM itu sendiri. Jika pengaturan HAM bersifat terlalu universal dan sulit diterima oleh golongan tertentu, maka perlindungan HAM akan kehilangan maknanya dan cenderung bersifat protokoler, politis, elitis, dan rigid. Alasan perancang ICCPR memasukkan pasal 4 tentang pengecualian pemenuhan kewajiban ICCPR dalam kondisi public emergency adalah advokasi agar negara-negara di dunia terdorong untuk meratifikasi atau mengaksesi konvensi tersebut. Jika pandangan sarjana Barat itu diikuti dalam ICCPR secara absolut, maka akan terjadi kekacauan politik di arena internasional.
1. Hak Kebebasan Berekspresi di Singapura
Sarjana ASEAN yang senada dengan pendapat di atas, selain Kausikan adalah Li-ann Thio. Li-ann berpendapat bahwa pendapat sarjana Barat sangat kental dengan motif politik yang bertujuan untuk menekan negara-negara Asia dan ASEAN pada khususnya sehingga HAM tidak bertujuan untuk melindungi hak dasar manusia tapi digunakan sebagai senjata politik. Golongan ini, menurut Li-ann Thio adalah universalist pretention. Berkaitan dengan hak kebebasan berekspresi, Kausikan menjelaskan contoh kasus Dr.Lingle. Dalam kasus Dr Lingle, Amerika Serikat menuntut agar Singapura memberikan imunitas kepada warga negara Amerika Serikat di Singapura dari tindakan penyidikan atas kemungkinan contempt of court dan criminal defamation sistem peradilan Singapura. Argumen Amerika Serikat ini didasarkan pada pendapat bahwa perlindungan hak kebebasan berekspresi merupakan nilai HAM universal dan Singapura melanggar nilai tersebut. Kausikan berpendapat bahwa tidak mungkin Singapura mengundangkan dua hukum yang berbeda, di mana yang satunya mengikat warga negara Singapura dan yang lainnya mengikat warga negara non-Singapura atau Amerika Serikat. Kausikan juga berpendapat bahwa jika hal tersebut dilakukan Singapura maka mereka diskriminatif dalam perlakuan terhadap warga negara sendiri dan orang asing. Selain itu, tidak ada satupun negara di dunia yang bisa secara legal mendiskriminasi hak dari warga negaranya dengan warga negara lain.
2. Hak Kebebasan Berekspresi di Indonesia
Dalam konteks Indonesia, menurut hemat penulis, kebebasan berekspresi malah digunakan sebagai sarana mencari uang dan kekuasaan. Sudah menjadi rahasia umum, dalam kegiatan pers, banyak wartawan yang meminta atau bahkan memeras public figure atau institusi tertentu untuk membayar sejumlah uang agar editorial tidak memasukkan informasi yang menjelekkan orang ataupun institusi tersebut. Selain itu, dalam konteks pemilu, banyak jurnalis ataupun wartawan yang meliput profil seorang calon legislatif maupun calon eksekutif (gubernur, walikota, dan kepala camat) sebagai “pesanan” dari calon bersangkutan. Profil tersebut cenderung bias karena jurnalis yang menulis atau melaporkannya diberikan insentif tertentu. Hal ini gagal diakomodasi oleh Undang-Undang Republik Indonesia Nomor. 40 tahun 1999 tentang Pers.
Kasus lain yang menjadi permasalahan kronis hak kebebasan berekspresi adalah kasus Ahmadiyah, dimana pers digunakan sebagai media untuk mendiskriminasi dan memicu ketegangan antara umat Islam dengan penduduk minoritas Ahmadiyah. Hal ini dilakukan secara sistemik dan birokratis oleh penguasa dengan dikeluarkannya SKB yang melarang kegiatan ibadah maupun ritual keagamaan Ahmadiyah. Kasus semacam ini tidak bisa ditangani oleh ICCPR dan merupakan salah satu kelemahan utama ICCPR sehingga negara anggota bisa menyalahgunakan kekuasaan untuk menindas rakyat kecil dengan menggunakan media pers.
V. Kesimpulan
HAM merupakan hak yang sangat mendasar sehingga semua negara seharusnya sepaham dalam hal pengaturannya. Namun, diversitas budaya juga merupakan sebuah realita dan diversitas budaya mempengaruhi tingkatan perlindungan HAM yang diberikan masing-masing negara. Dalam konteks hak kebebasan berekspresi, penulis, berpendapat bahwa pasal 19 ICCPR masih perlu khasanah nilai lokal negara-negara anggota. Pembelajaran dari kasus Singapura dan Indonesia menunjukkan dua kasus ekstrem kelemahan ICCPR, dimana pada kasus Singapura kebebasan pers begitu dikekang sehingga muncul pendapat bahwa pemimpin Singapura seorang diktator, sementara itu, pers di Indonesia dipandang begitu liar dan tidak terkendali sehingga fungsi pers tidak sebagaimana yang dimaksud ICCPR, namun untuk tujuan yang politis. HAM merupakan disiplin ilmu yang kental dengan aspek sosiologisnya sehingga tidak tepat jika pengaturannya bersifat universal, namun, juga tidak tepat jika negara diberikan hak mengatur tingkat perlindungan kebebasan berekspresi sendiri. ICCPR perlu menjabarkan konsep irreducible core, dalam bahasa Kausikan, sebagai konsensus negara-negara anggota ICCPR atas beberapa nilai HAM yang universal dan mengatur dengan fleksibel, namun tegas dan jelas, hak lain yang sangat berkaitan dengan nilai budaya setempat, seperti hak kebebasan berekspresi. Seperti logo HSBC, penulis akan menutup karya tulis ini dengan slogan think globally act locally.

Indonesia's Membership In ASEAN Economic Community As A Proper Economy Strategy For Its Economy Sustainable Development

CHAPTER I

INTRODUCTION

A. Background
Free trade is an inevitable phenomenon at the present moment. Since David Ricardo, an English economist, postulates the theory of comparative advantage in 19th century, there has been considerable transformation in international trade values. Comparative advantage was subsequently polished by Paul L.Samuelson, who was silently anointed as the Founding Father of free trade community in 1947 General Agreement on Tariffs and Trade. He once remarked that the principle of comparative advantage was the only big idea that economics had produced that was both true and surprising. Subsequently, comparative advantage was regarded as a fundamental pillar World Trade Organization (WTO) in 1994. In writer’s opinion, without the theory of comparative advantage, many States will not even bother to participate in WTO. This is evidenced by the fact hitherto there is country in this world which is not affiliated with any free trade agreement, both in WTO membership or free trade agreement.
In relation to the development of international trade, Association of Southeast Asian Nations (ASEAN) held the 12th Summit in January 2007 which envisages the ASEAN member States commitment to establish free trade area in 2015. This commitment was manifested in ASEAN Economic Community (AEC) blueprint. ASEAN vision in that blueprint is liberalization and transformation of ASEAN market into a region with free trade movement of goods, services, investment, skilled labor, and freer flow of capital.
Indonesia, as a member State of ASEAN also undertook the commitment to liberalize its market in that Summit. The obstacles of such membership are, including but not limited to, Indonesia’s industrial competitiveness, legal framework and bureaucracy which, in writer’s view, not sufficient to compete with other States in AEC. This condition is exacerbated by global financial crisis which devastates many States economy foundation, including Indonesia. Few immediate impacts of global financial crisis are drastic rate of unemployment, decrease in tax and customs. These impacts are due to the slowing down of export as well economy.
The other problem is internal preparation, which includes mental attitude of local industries, regulations, bureaucracy and human resources. Investors are complaining on uncertain legal policies, complicated industrial and business permit as well as numerous unrecorded fees they have to pay to corrupt bureaucrats. These complaints are merely the tip of the iceberg. The crux of the problem is that Indonesia is not willing to liberalize its market by loosening its protectionist policies, particularly when it comes to industries which deal with public interests. This problem is so fundamental since it is a compromise between Indonesia economy ideology embodied in article 33 of Indonesia Constitution (UUD 1945). Indonesia economy ideology as stated in Article 33 has the nuance of socialist ideology. Socialist system focuses on government role in the management of natural resources with public interest. If Indonesia undertake the commitment in AEC 2015, many parties are concerned with the dilution of Indonesia economy ideology.
In this paper, writer will focus his analysis on free trade philosophy, practical benefits of free trade, comparison between free trade and protectionist policy as well as reformation on Government, States Corporation (BUMN) and private entities Tripartite. This analysis will address economy problems in Indonesia, particularly on the issue of how to construct sustainable economy development in Indonesia.
B. Problems to Address.

1. How can free trade address Indonesia economy dilemmas, particularly in moment global financial crisis?
2. Are Tripartite Government, BUMN and private entities still relevant with Indonesia current economy development and how to adapt into international trade trend?
3. What is the proper political, economy and legal strategy of Indonesia in AEC so that Indonesia gain proportional benefits from its participation?

C. Purposes and Benefits of Research
1. Common Purpose
This paper is aims to analyze the benefits and harms of free trade and protectionism as well the relevance of tripartite. In particular, writer will address what Indonesia political, economy and legal strategy should be in AEC.
2. Specific Purposes
Based on the above mentioned common goal, there are three specific goals of this paper:
a. To explain the concept of free trade and protectionism as well the comparison between the both.
b. To lay down Indonesia fundamental economy dilemmas as well as analyzing how to gain benefits out of free trade in addressing some economy issues, particularly in global financial crisis.
c. To explain the relevance of tripartite in international trade trend currently and how to reinforce economy competitiveness of local industries as well as reformation policies needed for tripartite.
d. To provide recommendation for Indonesia with regards to what is the proper political, economy and legal strategy in AEC.

3. Benefits of the Research
Benefits of this research are as follows:
1. To provide recommendation for Indonesia government, particularly to Trade Department in conceptualizing the political, economy and legal strategy in AEC.
2. To provide research materials for academicians and common folks concerning the issue of free trade, its benefits and how to utilize it in times of global financial crisis.
 
CHAPTER II
RELATED LITERATURES
Writer uses several literatures in this paper, including:
1. Teaching materials of WTO in NYU compiled and written by J.H.H Weiler, with the title “International and Regional Trade Law: The Law of World Trade Organization, Unit I: Syntax and Grammar of International Trade Law.”
This journal comprehensively describes the historical perspective of free trade, its development, its philosophy and comparative advantage concept as well the proponent and opponent’s arguments on free trade concept. Comparative advantage theory underpins the economic case for free trade. Comparative advantage states that how countries can gain from trading with each other even if one of them is more efficient (it has an absolute advantage) in every sort of economic activity. Comparative advantage is about identifying which activities a country (or firm or individual) is most efficient at doing.
Moreover, this journal also describes the stage of economic integration, which consists of free trade, a customs union, a common market, an economic union and complete economic integration. In a free-trade area, tariffs (and quantitative restrictions) between the participating countries are abolished, but each country retains its own tariffs against nonmembers. Establishing a customs union involves, besides the suppression of discrimination in the field of commodity movements within the union, the equalization of tariffs in trade with nonmember countries. A higher form of economic integration is attained in a common market, where mot only trade restrictions but also restrictions on factor movements are abolished. An economic union, as distinct from a common market, combines the suppression of restrictions on commodity and factor movements with some degree of harmonization of national economic policies, in order to remove discrimination that was due to disparities in these policies. Finally, total economic integration presupposes the unification of monetary, fiscal, social, and countercyclical policies and requires the setting-up of a supra-national authority whose decisions are binding for the member states.
2. Jeff Vaux’s journal titled “The Case Against Free Trade.”
This journal describes in general arguments of opponent of free trade. The central of the argument is that free trade assumes the existence of equal playing field, while in reality there is no such equal playing field. First, each country has different market values and standards, hence free trace cannot be applied universally. Second, free trade causes children exploitation as workers in many unsafe factories.
3. David Vogel’s journal titled “The Case for Free Trade.”
This journal describes arguments of proponent of free trade, whose central argument is that free trade is a wealth creation concept. It is capable of escalating efficiency and eventually States’ economy.
4. Declan Hayes’s book titled “The Deregulation and Revitalization of Japanese Economy.”
This book describes Japanese economy policies liberalizing its market in 1990s, hence escalating its market efficiency. Hayes describes how inefficient Japanese market was in the past due to long chain of food distribution from producers to consumers. Hayes also came into conclusion because his observation tells him that the Japanese manage their farms individually, hence rice production for example is quantitatively small and that is a spendthrift. When Japan liberalized its market, the concept of economic of scale drastically alters the efficiency by enlarging the production capacity in one period of harvesting rice.
 
CHAPTER III
RESEARCH METHODOLOGY
The methodology of this research is a literature methodology. This type of research in its nature is a descriptive research, in its structure a prescriptive research, in its purpose a problem solution, in its implementation a problem focused research, and in its discipline a mono-disciplinary research.
The types of data used are secondary, consisting of primary, secondary and tertiary legal materials, as follows:
a. Primary legal materials, specifically legal documents which are legally binding such as valid and applicable Indonesian laws and international legal instruments;
b. Secondary legal materials, that is, legal documents relevant and related to primary sources to facilitate the analysis, understanding and elaborating primary legal materials, such as theories advanced by scholars, or contained in books, the internet, scientific articles, newspapers, and journals;
c. Tertiary legal materials, or legal documents that provide further clarification, accounts and explanations on primary and secondary legal sources, such as encyclopedias or dictionaries.
As for data collection tools, in addition to the study of the available documents, the researcher interviewed resource relevant scholars to enrich the data gathered. The methodology in data analyses uses a qualitative analysis approach, resulting in a report that is analytical in nature.
 
CHAPTER IV
ANALYSIS
A. Free Trade Concept
Free Trade is an interchange of commodities across political boundaries without restrictions such as tariffs, quotas, or foreign exchange controls. This economic policy contrasts with protectionist policies which use trade restrictions to protect or stimulate domestic industries. The most fundamental pillar of free trade is the concept of comparative advantage which is introduced by David Ricardo (subsequently reinforced by Paul L. Samuelson). In writer’s opinion, this theory allures many States to participate in WTO, though there are some arguments against free trade.
1. Comparative Advantage

This theory shows how countries can gain from trading with each other even if one of them is more efficient (it has an absolute advantage) in every sort of economic activity. Comparative advantage is about identifying which activities a country (or firm or individual) is most efficient at doing. To see how this theory works imagine two countries, A and B. Each country has 1,000 workers and can make two goods, computers and cars. A’s economy is far more productive than B’s. To make a car, A needs two workers, compared with B’s four. To make a computer, A uses 10 workers, compared with B’s 100. If there is no trade, and in each country half the workers are in each industry, A produces 250 cars and 50 computers and B produces 125 cars and 5 computers. What if the two countries specialise? Although A makes both cars and computers more efficiently than B (it has an absolute advantage), it has a bigger edge in computer making. So it now devotes most of its resources to that industry, employing 700 workers to make computers and only 300 to make cars. This raises computer output to 70 and cuts car reduction to 150. B switches entirely to cars, turning out 250. World output of both goods has risen. Both countries can consume more of both if they trade, but at what price? Neither will want to import what it could make more cheaply at home. So A will want at least 5 cars per computer, and B will not give up more than 25 cars per computer. Suppose the terms of trade are fixed at 12 cars per computer and 120 cars are exchanged for 10 computers. Then A ends up with 270 cars and 60 computers, and B with 130 cars and 10 computers. Both are better off than they would be if they did not trade. This is true even though A has an absolute advantage in making both computers and cars. The reason is that each country has a different comparative advantage. A’s edge is greater in computers than in cars. B, although a costlier producer in both industries, is a less expensive maker of cars. If each country specialises in products in which it has a comparative advantage, both will gain from trade.
In essence, the theory of comparative advantage says that it pays countries to trade because they are different. It is impossible for a country to have no comparative advantage in anything. It may be the least efficient at everything, but it will still have a comparative advantage in the industry in which it is relatively least bad.

2. Stages of Economic Integration

In everyday usage the word “integration” denotes the bringing together of parts into a whole. In the economic literature the term “economic integration” does not have such a clear cut meaning. In interpreting this meaning, Weiler puts great focus on the distinction between integration and cooperation. The difference is qualitative as well as quantitative. Whereas cooperation includes actions aimed at lessening discrimination, the process of economic integration comprises measures that entail the suppression of some forms of discrimination. For example, international agreements on trade policies belong to the area of international cooperation, while the removal of trade barriers is an act of economic integration. Distinguishing between cooperation and integration, “writers” put the main characteristics of the latter, the abolition of discrimination within an area, into clearer focus and give the concept definite meaning without unnecessarily diluting it by the inclusion of diverse actions in the field of international cooperation
Economic integration, as defined here, can take several forms that represent varying degrees of integration. These are a free-trade area, a customs union, a common market, an economic union, and complete economic integration. In a free-trade area, tariffs (and quantitative restrictions) between the participating countries are abolished, but each country retains its own tariffs against nonmembers. Free trade flaw is that it may cause trade distortion. Therefore the idea of establishing a customs union is needed. Establishing a customs union involves, besides the suppression of discrimination in the field of commodity movements within the union, the equalization of tariffs in trade with nonmember countries. A higher form of economic integration is attained in a common market, where mot only trade restrictions but also restrictions on factor movements are abolished. An economic union, as distinct from a common market, combines the suppression of restrictions on commodity and factor movements with some degree of harmonization of national economic policies, in order to remove discrimination that was due to disparities in these policies. Finally, total economic integration presupposes the unification of monetary, fiscal, social, and countercyclical policies and requires the setting-up of a supra-national authority whose decisions are binding for the member states.
B. Arguments of Proponent and Opponent of Free Trade
1. Argument of Proponent of Free Trade
One of the most notable scholars who adhere to free trade concept is David Vogel. First, as explained in the previous paragraph, every State participating in free trade will absolutely gain benefits from such activity. The proponent of free trade promises that a State joining free trade will definitely be richer, though the proponent does not promise such State to be rich.
Second, States joining free trade will be more efficient in its course of production. A tariff is essentially a tax on consumption. It raises the prices of imported goods and services. When tariffs are reduced or eliminated, consumers benefit by being able to purchase goods produced in other countries more cheaply. This in turn forces domestic producers to be more efficient in order to remain competitive again benefiting consumers. Consider how inferior American cars would now be if the American automobile industry had not been forced to compete with the less expensive, better quality cars made in Japan during the 1970s. How much poorer Japanese consumers would be if Japan tried to be self-sufficient in food, instead of exporting automobiles and electronics to the United States and importing fruits and vegetables grown on more efficient American farms?
Trade restrictions impose considerable costs on consumers. In 1990 U.S. tariffs and other import restrictions cost American consumers about $70 billion by adding to the price of imported goods. Since 1990 the United States has entered into trade agreements that have substantially lowered the costs of many imported products. The increase in foreign competition in turn has made it more difficult for American firms to raise their prices, thus helping reduce inflation. By contrast, in 2000 food prices were 34 percent higher in the European Union (EU) and 134 percent higher in Japan than in the United States largely because the EU and Japan had higher tariffs on imported food.
In addition, trade makes it possible for businesses to choose from a wider variety of inputs (materials used to make goods) than would be possible if they relied solely on domestic suppliers. The freedom of firms to choose from an array of inputs improves efficiency, promotes innovation in technology and management, encourages the transfer of technology, and otherwise enhances the growth of productivity.
The benefits of free trade can be seen clearly in the case of the United States. In recent decades, the United States has become increasingly integrated into the global economy. As both U.S. and foreign trade barriers have declined, exports and imports have grown substantially. Heritage Foundation Fellow Daniel Mitchell argued this persuasively in The American Enterprise in 2000. From 1980 to 1998, U.S. exports increased from $272 billion to $934 billion, Mitchell argued, while imports grew from $292 billion to $1,100 billion. During the 1990s, a period when U.S. links with the global economy were more extensive than ever before, the United States had among the fastest growth rates of any major industrial nation.
The positive effects of trade on economic growth are confirmed by numerous studies. According to one study reported on by Mitchell, during the 1970s and 1980s, developing open economies (those with relatively free trade), such as Chile and South Korea, grew on average by 4.5 percent, while closed economies (those with restrictive trade policies), such as India and Cuba, grew by only 0.7 percent. A statistical study of 70 nations found that a 10 percent increase in tariffs on capital goods (goods that are used in the production of other goods) would cause the gross domestic product (GDP; the total value of all goods and services produced within a country) to grow by 0.2 percent less each year. An analysis of 93 countries revealed a close link between open economies and rates of productivity. Another statistical study, based on 123 nations, found that every percentage-point increase in total imports and exports leads to a 0.34 percent increase in per capita income (income per person). Over a period of years, small differences in economic growth such as these have a large impact on living standards.
The last three decades have seen a significant improvement in living standards for hundreds of millions of people. Without exception, the countries in which living standards have improved most rapidly have substantially reduced trade barriers and increased their exports. Since 1970 Asia’s “four little tigers”, Hong Kong, South Korea, Taiwan, and Singapore, have been transformed from impoverished areas into some of the world’s richest areas. Many of their citizens now enjoy living standards comparable to those of the United States and Europe. Not coincidentally, these four entities are among the 20 largest traders in the world
The positive impact of international trade on economic growth can be dramatically seen in China. From 1978 to 1998, China’s total imports and exports grew from $21 billion to $324 billion. During this same period, the country’s per capita income increased by more than 8 percent per year, helping raise some 200 million people out of absolute poverty. By contrast, India’s economic growth has been significantly reduced by the persistence of high tariffs and restrictions on foreign investment. Africa, the only continent whose citizens have experienced an absolute decline in living standards in recent decades, is also the region least involved in international trade. Economists point to many causes for Africa’s relatively poor economic growth, such as inadequate infrastructure, government corruption, and low levels of education, but most agree that international trade is vital to turning around the economic decline.
2. Argument of Opponent of Free Trade
One of the most notable scholars who disprove free trade concept is Jeff Faux. The central of this argument is that free trade will only benefit States assuming that there is an equal playing field. In reality, there is no such equal playing field.
First, different nations have different values. Regulating trade helps protect the standards that we set in our own domestic markets. For example, in order to protect public health, the United States government requires that food sold in our stores be fresh and clean, that toys be safe, and that products only be made in factories that do not pollute the environment. To protect workers from being exploited by business, the government sets minimum wages, defends the right of employees to bargain collectively through unions, and prohibits people from employing young children. To protect business, the government enforces commercial contracts and protects corporate trademarks and patents. This balance of protections for consumers, workers, and business has helped make America the world’s most successful economy.
Meeting labor and environmental standards often adds to the cost of production. Therefore, if businesses could lower their costs by not meeting the standards, they might make more profit and lower the price of their products. Yet most people in the United States believe it is worth protecting workers and our air and water, even if that makes goods and services produced in America more expensive. However consumers are economics creatures, therefore purchasing the least expensive items. This causes many products generated in U.S. with high standard of environmental and human rights protection, which are expensive, lose market. Consequently, many of US workers lose their jobs.
However, different nations have different values. Governments in many countries, especially those that are not democracies, often do not protect workers or the environment. The prices of goods imported from such nations will tend to be cheaper than goods produced in the United States. In that case, consumers who usually look for the lowest prices will buy foreign goods in preference to products made in the United States. As a result, U.S. workers will lose their jobs.
This is not a problem in markets for imports that the United States cannot produce much of here, such as bananas, coffee, or tea. It does become important for imported goods that compete against goods made in America, such as automobiles, clothing, or cameras. Placing tariffs on such imports adds to their price, thus making it easier for goods produced under U.S. standards to compete with imports.
Recent treaties signed by the U.S. government, under both Democratic and Republican administrations, have encouraged this shift of production from the United States to areas of the world with low standards. These include the North American Free Trade Agreement (NAFTA) with Mexico and Canada and the treaty establishing the World Trade Organization (WTO) with 135 different nations.
These treaties are often called free trade agreements because the nations that signed them agree to reduce tariffs and quotas. Unfortunately, they also create new, unequal standards for the global economy by protecting business but not labor or the environment. For example, the WTO forbids a citizen of Mexico to copy a compact disc made in the United States without paying a fee to the U.S. Company that sells the compact disc. However, the WTO allows a U.S. company in Mexico to make compact discs in ways that pollute the air and water and treat workers unfairly.

Second, free trade has also encouraged the use of child labor. The International Labor Organization (ILO), an agency of the United Nations (UN), estimated in 1998 that there were at least 250 million children from the ages of 5 and 14 working for wages. Researchers at the University of Veracruz in Mexico recently reported that child workers there are exposed to dangerous chemicals, carry heavy loads, and do not get enough nutritious food to eat.
There are about two million child workers in Brazil. Many work 10 hours a day producing sisal for rugs, rope, and handbags sold in the United States. According to a report in 2000 in the Washington Post, “The sharp blades and processing machines used in the fields have left many children and their parents with punctured eyeballs, missing fingers and amputated arms.”
C. Tripartite Government, BUMN and Private Entities

1. Does Free Trade Contradict the Principle Embodied in Article 33(2) and (3) of UUD 1945?
Indonesia economy ideology is cooperation ideology. The main feature of this ideology is that important natural resources which concern public interest should be regulated and managed by the government. Two of the paragraphs within Article 33 UUD 1945 is the basis for the establishment of BUMN such Water Corporation (PAM), Electrical Corporation (PLN), and Oil and Gas Corporation (PERTAMINA).
Writer opines that in the early days of Indonesia’s independence, two of these paragraphs serve very important function of protecting Indonesia’s interests since as a newly independent State, Indonesia does not have proper and adequate economy structure. Every available natural resource must be secured as soon as possible before any private corporation took over the proprietorship. Therefore, many private corporations were nationalized, those include Dutch’s owned corporations which owned important natural resources (water, electricity and oil and gas). Control over these natural resources are important in those early days as Indonesia did not possess anything at hand, including reserve, fiscal, tax, national reserve for foods, oil and gas to run the economy of the country. At the present moment, circumstances have changed, it is reasonable that Indonesia has sufficient reserves in place after 63 years of independence. In addition, economy structure is sufficiently developed, unlike the early days of independence. Therefore, the principle contained in Article 33 (2) and (3) UUD 1945 should be compromised so that Indonesia is capable of adapting itself into international trend of economy and trade.
Many parties disprove liberalization of Indonesia’s market since it is against the economy principle embodied in Article 33 (2) and (3) UUD 1945. Writer differs on this point. If careful examination is conducted upon Indonesia’s constitution, it actually implies market liberalization in the context of free trade. Article 34 UUD 1945 stipulates “National economy is instituted with… efficiency, fairness…independence and self reliance.” The words “efficiency” and “self reliance” are two key words for concluding that Indonesia’s constitution implies market liberalization. The reason why Article 33 (2) and (3) implying protectionism and Article 33 (4) implying market liberalization were drafted that way is due to chronological structure. UUD 1945 understands that Indonesia needed protectionism in the early days since society economy needs were highly dependent on government’s management on natural resources. Only in the year of 2002 when economy necessity has shifted that the fourth paragraph was included in the fourth amendment of UUD 1945. In 2000, economy values have changed, hence market liberalization was included as one of the most fundamental pillars in Article 33 UUD 1945.
2. “Spoiled” BUMN
BUMN is a corporation which is wholly or partially owned by State by means of direct investment from separated national budget. This definition connotes the interest of State in the business course of BUMN. Logical consequence of this connotation is numerous government interventions in business decisions BUMN made, while in reality BUMN assumes a legal status under Indonesia law (Limited Liability Corporation). Some argue that BUMN’s primary function should be administering public interest, while benefits can be gained once the primary function is successfully accomplished and in the event that benefits purpose does not defeat the primary function. In writer’s view, this argument is not properly established from two observational standpoints, legalist and economy wise.
First, article 2 (1) Law Concerning BUMN which regulates the purpose of BUMN establishment prioritizes benefits purpose (b) above public interest (c). This is evidenced by the structure of the law which places b first before c.
Second, a benefit is the key feature of administering public interest so that public interest is well served. Benefits dictate efficiency and competition. Since corporations are economic creatures, which aim for benefits, they will employ economic principles and calculations. Economic principle advocates efficiency and competition which to produce the best and cheapest products so that those corporations can win competition and gain benefits. To achieve this, corporations will optimize all factors of productions, including raw materials, marketing, production process and transportation cost, in the most efficient fashion. Natural resources such as gas, oil, water and mining materials are not wasted because those corporations have to compete against other corporations. These corporations tend to prioritize consumers’ satisfaction as consumers are the relevant parties in benefits calculation.
The case study for the above proposition is TOTAL, a water company in France. Subsequent to France’s privatization on its water, TOTAL Company took over France’s government management and ownership on water. TOTAL employed very sophisticated technology so that the water produced has even higher standard than that imposed by World Health Organization (WHO). Although there are some complaints to the rather expensive price of the water, writer opines that this problem can be addressed by government intervention. For instance, market diversification, where TOTAL is obliged to produce water with less quality and cheaper than that of previous one. This policy is also consistent with corporations’ principle which is to identify and satisfy the market. In reality, consumers of cheap and less good water are much more in quantity than those consumers of expensive of good water. TOTAL will still gain a big market share by this policy. In short, market liberalization does not automatically bring in all harms which outweigh the benefits of liberalization.
Several reasons why writer asserts that BUMN are “spoiled”:
• Government protects BUMN by means of regulation. The most obvious example is the practice of government guarantee whereby State national budget (APBN) is used to guarantee loans of BUMN from other private entities. Consequently, large portion of the loans are inefficiently utilized. It is a common secret that BUMN is not effective and efficient. This is evidenced by numerous media publications on imprudent PERTAMINA business decisions, corruption cases in PERTAMINA, fraudulent large crude oil tender and ineffective oil distribution from PERTAMINA which has recently caused public unrest for oil rarity.
• Government grants considerable tax incentives to BUMN. In the recent global crisis phenomenon, government granted Rp 12.5 trillion to BUMN.
• BUMN’s assets cannot be confiscated for purpose of indemnity which is caused of breach of contract or bankruptcy proceedings. Consequently, when BUMN fails to pay its debt or obligation to third parties, there is no available legal channel for those parties to claim for indemnity or damage.

3. Harmful Impacts of Government Policies “Spoiling” BUMN
The immediate harmful impact of government protectionist policies is that no investors would want to invest his capital in industrial sectors which concern public interest; hence there is no transfer of technology and know-how. Industries which concern public interest such as oil, gas and electricity are typical industries craving for technologies since its production efficiency highly depends on the quality of technology. For instance, the efficiency of oil extraction depends on how much oil can be extracted in a short length of time and how fast and well can raw oils be transformed into ready-to-use oil. Government protectionist policies will kill investments enthusiasm, particularly during global financial crisis. This is unwise since Indonesia lacks capital and technology. In addition, it is of common knowledge among businessmen that investment in Indonesia is not safe due to uncertain legal policies and protectionist attitude towards local industries.
D. Benefits of Indonesia’s Participation in AEC, Particularly in Global Financial Crisis
In global financial crisis, economy activities generally slow down. This instigates low investment interest drastically. Numerous world class corporations such as Nike, Toyota and Starbucks companies have to shut down many factories in other countries. Writer opines that Indonesia’s participation in AEC is one the answers of economic crisis it is facing, especially in times of global financial crisis. In this part of paper, writer will explain his opinion and analysis on AEC policies, benefits of AEC’s membership and the harms of Indonesia’s position not participating in AEC.
1. AEC Policies
AEC policies are basically consistent with WTO discipline. The political and legalist rationale for this assertion is that all member States of ASEAN are member States of WTO; therefore if AEC policies are not consistent with WTO discipline, all ASEAN member States can be sued before Dispute Settlement Unite in WTO for their breach of international agreement.
AEC blueprint paragraph 8 stipulates that the AEC envisages the following key characteristics: (a) single market and production base, (b) a highly competitive economic region, (c) a region of equitable economic development, and (d) a region fully integrated into the global economy. These characteristics are inter-related and mutually reinforcing. Four of these integration processes in ASEAN are similar to those of WTO discipline. For instance, in point (a), paragraph of the blueprint explains further that the five primary elements of point (a) single market and production base are: (1) free flow of goods, (2) free flow of service, (3) freer flow of capital, (4) free flow of investment, (5) free flow of skilled labor. Concrete policy each member State has to take in realizing these five elements are elimination of trade restrictions, devising Rules of Origin, trade facilitation, customs integration and establishment of ASEAN Single Window.
2. Concerns on Harmful Impacts of Free Trade to Indonesia
Many parties are concerned with Indonesia’s lack to participate in AEC since Indonesia is simply not mature enough. Those lacks are: (1) uncertain legal policies, (2) competitiveness of local industries, (3) human resources readiness, and (4) bureaucracy maturity, particularly its corrupt behavior in permit application and illegal taxation. Professor Hikmahanto Juwana expressed that if Indonesia joins AEC, all big companies will allocate their factories in other countries such as Vietnam whose policies are very friendly to investors. Big companies used to establish factories in Indonesia because the factor of production (raw materials) can only be found or the cheapest in Indonesia, even when they are not content with Indonesia’s government policies. In addition, Indonesia is a big market for selling their products. If Indonesia liberalize its market, all these companies can still enjoy all the above mentioned benefits even if they allocate all their factories in Vietnam since free trade commitment obliges Indonesia to eliminate all trade restrictions. The impacts of these big companies shifting their course of production to Vietnam are huge rate of unemployment, the bankruptcy of many “related” industrial sectors, such as transportation for workers, foods and accommodation in the area around the factories. The other concern is that local industries which are in direct competition with these big companies will not be able to survive the competition against those big companies since they have much better technology and human resources.
In addition, Indonesia does not have skilled and trained scholars in the field of free trade or WTO discipline, which means that where dispute arises in AEC DSU, Indonesia will most likely lose. This is not unprecedented and in fact Indonesia has experienced “nightmare” for international dispute such as Sipadan and Ligitan dispute before the International Court of Justice (ICJ). The ICJ in that case unequivocally voted 14 to 1 for Malaysia and consequently Indonesia lost two of its islands. Worst of all, Indonesia hired American and French lawyers with millions of US dollars fee.
Moreover, permit application in Indonesia is infamous for its extremely complicated procedures. Although article 1 (1) Indonesia Laws No.25 year 2007 concerning Investment has mandated one stop service of business permit institution, hitherto the concept has not been implemented comprehensively.
3. Benefits of Indonesia’s Participation in AEC
Free trade concept, similar to EU customs union, is to consolidate economy power within the region. This means that States with disadvantaged economy power will be enhanced by powerful States within the free trade institution. This is evidence by strong motivation driving Eastern European States like Bulgaria, Romania and Turkey to join EU. If Indonesia participates in AEC, Indonesia’s economy power will also be enhanced by more economically powerful States such as Singapore, the Philippines and Malaysia. Concrete example of this assertion is within the context of tariff concession negotiation and policy making in WTO against non-member States of AEC. The primary reason why US and EU are two of the States benefiting the most from WTO is because they have the strongest bargaining power against all States in the world. Uruguay Round and Doha Round are the most obvious experiment ground for this huge bargaining power. During the negotiation, States will strive to reduce tariffs on exported products where those States have absolute advantage. On the contrary, State will strive to maintain or even increase tariffs of imported products where they do not have absolute advantage. With such infinitely small economy power, Indonesia absolutely does not have any bargaining power against those economically powerful States to propose, let alone dictate its desire on certain tariffs. If Indonesia joins AEC, hence, AEC will represent the interest of Indonesia during the negotiation in WTO as one economy entity. This will definitely enlarges Indonesia’s bargaining power.
In addition, if Indonesia refuses to participate in AEC, other AEC members will most likely have sentiments against Indonesia. In business, the principle of “If you are not my ally, then you are my foe” dominates the market. If Indonesia is not an ally to ASEAN members, it must be foe for AEC members. This explanation is best described by the following analogy. Hypothetically, Indonesia is the main or sole producer of palm oil and Malaysia and the Philippines are the only market for palm oil products. Prior to establishment of AEC, Malaysia imposes 10% tariff on palm oil products, while the Philippines imposes 20%. Indonesia approaches the Philippines and negotiates for 15 % tariff for palm oil. If the Philippines reject this proposal, Indonesia can easily sell the whole products to Malaysia which offer better tariff. Imagine if both Malaysia and the Philippines belong to one economy blog. Both of them will dictate 20% tariff and Indonesia cannot do anything about such policy since palm oil market is only in Malaysia and the Philippines. If Indonesia does not want to sell these products with 20% tariff, then those products will rot and go wasteful.
E. An Analysis to GATT and WTO Principle to Protect Indonesia Agriculture Interest
Indonesia is well known as agricultural country, whose economy power revolves around agricultural activities. Writer opines that there are legal arguments Indonesia can employ to protect its agricultural interest if Indonesia participates in AEC. Since AEC has to adopt WTO principle consistently, analysis to WTO and GATT principle is relevant to analysis of AEC principle. In a nutshell, the argument is that WTO is very lenient in agricultural policy compliance with GATT.
First, article 3 of Agreement on Subsidies and Countervailing Measures stipulates that “Except as provided in the Agreement on Agriculture, the following subsidies, within the meaning of Article 1, shall be prohibited.” This provision indicates privilege for agricultural industry where a specific convention is drafted to protect agriculture interest of WTO member States.
Second, Article XXXVI GATT stipulates that States which are very dependent on agriculture industries are permitted to employ protectionist measures to stabilize and improve world trade condition, including the said State agriculture sustainability.
 
CHAPTER V
CLOSING

Conclusion and Recommentation

From the above explanation, there are several conclusions established:
1. Comparative advantage is the most fundamental pillar of WTO and free trade arrangements in general. This concept is postulated by David Ricardo, which is subsequently reinforced by Paul L. Samuelson, the noble prize winner for economy category in 1970 and the greatest economist in the 20th century. Both economists agree that theory of comparative advantage says that it pays countries to trade because they are different. It is impossible for a country to have no comparative advantage in anything. It may be the least efficient at everything, but it will still have a comparative advantage in the industry in which it is relatively least bad. Particularly in global financial crisis where investors are very reluctant to conduct investments (they have to close down many factories in fact), Indonesia should liberalize its market to seduce new and fresh investments. Indonesia core economic problem is the lack of capital, technology and know, all of which are the advantage gained from liberalizing its market.
2. Tripartite concept is protectionist in nature; hence it is not relevant any longer with Indonesia’s economic needs at the present date. Most importantly, protectionist policies are repugnant to many investors. Most parties’ concern on how liberalization of market is not consistent with economy ideology envisaged in Article 33 (2) and (3) UUD 1945 is also improper since Article 33 (4) UUD 1945 as the result of 2002 amendment advocates free trade as the relevant economy policies nowadays.
3. Indonesia needs to strategize its political, economy and legal position with regards to AEC membership. First, Indonesia needs to make a position joining AEC. Indonesia needs to conduct thorough reformation on human resources trained in free trade and WTO discipline. Second, Indonesia has to consider its revoking protectionist measures for BUMN and consider privatization for those sectors with minimum regulation to protect public interest.