The Chronicles of a Capitalist Lawyer

On 12 August 2011, the Indonesian Constitutional Court issued its decision concerning judicial review of Law No. 8 of 1981 on Criminal Procedural Law (" Criminal Procedural Law "). You can download the decision here . Under the decision, the Constitutional Court deemed that the definition of a Witness should be amended from "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is heard, seen and experienced by him/herself" to become "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is not always heard, seen and experienced by him/herself". According to the Constitutional Court judges, the definition should be amended since based on grammatical interpretation, the term "is heard, seen and experienced by him/herself" refers specifically to the criminal case itself. As such, such definition will violate the rights of the

I find this tragedy as a case with a very interesting legal feature. Basically, a boy who was driving recklessly caused the death of two of his classmates last saturday morning. How do we know about his reckless driving? Prior to their death, one of the victim shared her experience through Twitter, saying that the boy was entering a drag race with his friends as passengers! Then another victim re-tweeted the tweet, confirming the information about the boy's involvement in the drag race (I have to put a caveat here though, re-tweeting a tweet does not necessarily means that the re-tweeted tweet is true). From the news, I understand that there are two other survivors from this accident, which would be helpful as witnesses in the court. However, let us assume in this case that there is no evidence who can confirm the boy's reckless driving that night. Can we then use the written testimony of his dead friends in Twitter as the basis to punish him in the court? Legally, this woul

Oh dear, it seems that I almost forgot the second anniversary of this beloved blog! I've been busy with the preparation for my post graduate study at the University of Chicago Law School, e.g. completing all of my remaining corporate lawyer work prior to leave (so that I won't have any additional homework during my study), preparing my travel to and living needs in Chicago (getting US visa and securing an apartment lease), and pulling together the learning materials (the law school database was opened already in June and I must say that I am overwhelmed with the enormous data, very exciting!). I hope that I can be more productive in this blog as soon as I have settled my live at Chicago. Stay tune folks.        

Welcome to the second episode of Legal Analysis Tool Kit Series! Our today's discussion will focus on the concept of Baseline or to put it in a simple way: where should we start before we can impose a law or policy? The concept of Baseline is an interesting one because it deals with the fundamental issue of the original position of certain rights or obligations. Let me give you an example: In Indonesia, we have regulations on minimum wage for workers. Suppose that someone goes to the Constitutional Court and demand that such law should be annulled on the basis that it contravenes his constitutional rights of freedom to work (Article 28 D (2) of the Constitution). The basis of the claim? A company rejects him from a working position because it isn't able to pay him the minimum wage and therefore the company refuses to accept him. This is a hypothetical case since I haven't  done or read any research on the actual relationship of minimum wages and the companies' willing

Islamic Law is one of my most cherished fields as a lawyer and during my 10 years experience in the art of law, I have done a lot of research and read hundreds of books on Islamic law. Nevertheless, until today, I have not found a general theory of Islamic law that can answer these ultimate questions in a satisfactory way: Are Islamic laws (specifically those stated in the Koran and Hadith) opened to any changes in the society? Should Islamic laws be applied as they are, without any consideration of the situation and condition? Suppose they can be changed in accordance with the situation and condition, what part of the laws that are immutable and those that can be considered as changeable? Are there any consistent methods of interpretation to be used in applying Islamic laws in accordance with the situation and condition? In reality, there is no unity in the application of Islamic law in any part of this world except for certain undisputable items such as syahadat as the first req

Here is a rather gloomy article on the future of lawyering. I would say that while some US and UK law firms might face serious problems, the same thing is not happening in Indonesia, or rather, not happening yet. Will it someday happen? Might be, but I doubt that it will be soon. The main issues raised in this article are among others: globalization (i.e. legal outsourcing), super expensive bills, and technology innovation that might reduce lawyers' administrative work. Compared to Indonesia, all of these issues are not relevant. There is no incentive in Indonesia to do a legal outsourcing, especially to India, simply because the costs might be very similar. Expensive bills might be a case, but for most of foreign and local clients, Indonesian firm bills are still cheaper compared to international law firms (in terms of sophisticated projects) and surely Indonesian firms have a better understanding about Indonesian law in any case. Technological innovation? Yes it will help la

A very good source on various articles on Tort Law. I am still confused though, should we elaborate Tort Law based on the concept of justice or this is simply about pure economic matters? Hopefully you can find the answer in the articles listed there. Happy reading.

Here is an interesting article on coordination among government officials. Apparently, the United States faces the same problem with Indonesia, a lack of coordination between officials. I guess this is the problem when we have too many regulators. Some classical legal scholars argue that there are 3 pillars of a government: (i) the legislative (the house of representatives), (ii) the executive (the president), and (iii) the judicial authority (the court). However in this modern world, we need to add another pillar of government, the quasi-regulator a.k.a government agencies. Some examples in Indonesia: the Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) and the Investment Coordinating Board (BKPM). Not to mention that specific ministries also have authorities to issue technical implementing regulations. The Ministry of Communication and Informatics could be a good example as this ministry governs many important sectors such as broadcasting and telecommunicati

A couple of days ago I found this interesting article in Cafe Salemba. Their basic idea is that competition among law enforcers in fighting corruption, i.e. the Commission of Corruption Eradication ("KPK") and the General Attorney Office ("Kejaksaan") is good as it will increase the cost of bribery and the efficiency of the law enforcers. I beg to differ with this approach, since this will only work under 2 basic assumptions: (i) both law enforcers work in a professional and clean manner or both take bribes seriously; and (ii) cases can be easily transferred between law enforcers (though it seems impossible under the double jeopardy rule). Why do we need the above assumptions in order to ensure that the competition system will work? Because if not, one of the law enforcers can act as a save haven for the bad guys simply by guaranteeing the villains that their bribe will work and that they will be protected from the other law enforcer who don't receive an