Newsletter 7th Edition-020710

September – December 2010 | FW&P | 1

Editor’s Preface

Newsletter

Dear readers, Time goes by so fast, and we are near the end of the year. Many interesting events have happened these past few months, such as another tussle between the Indonesian Bar Association (PERADI) and the Indonesian Advocate Congress (KAI) regarding a single bar association, debates over the selections of the new KPK Chairman, Attorney General and Chief of Police, plus-minus in the plan to move the capital from Jakarta to Palangkaraya, and so forth. As we know from mass media, on Wednesday, 22 September 2010, another fight ensued between PERADI and KAI at Grand Melia Hotel, during swearing-in of new advocates of PERADI. According to a news article at www.detiknews.com on Friday, 24 September 2010, entitled “Menkumham Siap Menjadi Mediator Perdamaian PERADI-KAI”, this dispute was triggered by PERADI’s decision to suggest swearing-in of KAI members after they have registered at PERADI for 3 years and have passed a special exam. Previously on 24 June 2010, a confrontation between PERADI and KAI broke out at the Supreme Court building, during the signing of a Memorandum of Understanding between PERADI and KAI. This incident is distressing because it can ruin the image of the legal profession as officium nobile (a noble profession).

This conflict is pretty much caused by the formation of a single bar association which was demanded by Article 28 paragraph (1) of Law No. 18 of 2003 on Advocates. History shows that the effort to form a single bar association in Indonesia has always met obstacles and failures, and has often created conflicts between bar associations. Since historically, there has always been more than 1 bar association in Indonesia, it can be said that the naturally created condition of the bar association followed by Indonesia is the Multi Bar Associations. Therefore, concrete steps must be taken to settle this prolonged conflict, such as an amendment to the Advocate Law or a judicial review of the Advocate Law, especially Article 28 paragraph (1) of the Advocate Law.

Without any settlement of this bar association conflict, it will be extremely difficult to create order in the legal profession, so there should be a solid national bar association to supervise the behavior of advocates. Only a solid, unified and dignified bar association can straighten out the behavior of advocates who


are accused of being involved in judicial corruption practices. Hopefully the existing bar association can actually perform the function of a bar association and contribute to the national legal reform.

In this year-end edition, we publish articles entitled Effect of Work Agreement for a Specified Period of Time in Languages other than Indonesian Language, The Plan to Move the Nation’s Capital from Jakarta to Palangkaraya, Controversy over Corruption and Public Service, Commercialism vs. Right to Education.

We hope this seventh edition can give valuable input regarding the legal issues in this newsletter. If there is a mistake in the writing, we can only offer our deepest apology. Finally, we would like to wish you a MERRY CHRISTMAS and a HAPPY NEW YEAR 2011.

Happy reading, Best regards,

Abraham Roos Muthalib, S.H.

Editor’s Preface


C O N T E N T S

7th Edition Newsletter Frans Winarta & Partners

__________________________

Editor in Chief Abraham Roos Muthalib

Publisher

Endah Ayuningsih

Managing Editor Agustinus Firlianto

Assistant Editor Richard Suryanto

Technical Support Patricia Ann Winarta

Ketut Bayu Badra Catherine Lieba Ary

Sabina Roosetyawati

1 Editor’s Preface 3 Contents

4 Founder’s Message

5 Inside the Firm

8 Winarta IP Practice

9 Article

Effect of Work Agreement for a Specified Period of Time in Languages other than Indonesian Language

Written by: Retno Wulandari, S.H., M.H. (Junior Partner of Frans Winarta & Partners)

12 Article Controversy Over Corruption And Public Service Written by: Dr. Frans H. Winarta, S.H., M.H. (Managing Partner of Frans Winarta & Partners) Article The Plan To Move The Nation’s Capital From Jakarta To Palangkaraya Written by: Dr. Frans H. Winarta, S.H., M.H. (Managing Partner of Frans Winarta & Partners)

17 Article Commercialism vs. Right to education Written by: Dr. Frans H. Winarta, S.H., M.H. (Managing Partner of Frans Winarta & Partners)

19 Article Deponeering as Attorney General’s Discretionary

Power Written by: Dr. Frans H. Winarta, S.H., M.H. (Managing Partner of Frans Winarta & Partners)

22 Article

The Importance of “Marks” in Fair Business Competition Written by: Neneng Sri Wiyanti (registered IP Consultant of Winarta IP Practice & Fitri Manik (staff of Winarta IP Practice)

13


Founder’s Message

Dr. Frans Hendra Winarta, S.H., M.H. completed his bachelor degree in Law at Parahyangan Catholic University (1970), his master’s degree in Criminal Law at the University of Indonesia (1998), and his doctorate degree in Criminal Law at Padjadjaran University (2007). He has been practicing law and established Frans Winarta & Partners Law Firm since 1981. Besides lecturing, he is active in national and international organizations, among others, the Indonesian Bar Association (IKADIN), the Indonesian Legal Aid Foundation (YLBHI), Chairman of the Central Executive Board of Peradin for the 2009-2013 period, Country Representative for Indonesia of the Regional Council on Human Rights in Asia, the Indonesian National Board of Arbitration (BANI), the International Court of Arbitration of the International Chamber of Commerce (ICC), Member of the International Bar Association (IBA), Council Member of IBA Human Rights Institute (2000-2004), Member of the American Bar Association (ABA), and Member of the Governing Board of KHN (the National Law Commission).

Recently the Attorney General’s Office has grabbed the people’s attention, especially after the issuance of the Decision of the Constitutional Court of the Republic of Indonesia Number 49/PUU-VIII/2010 dated 22 September 2010 regarding a judicial review on Law Number 16 of 2004 on the Public Prosecution Service (“Law No. 16/2004”). In its decision, the Constitution Court states that Article 22 paragraph (1) point d of Law No. 16/2004 does not have any binding legal power if it is not interpreted that “the tenure of the Attorney General ends when the President’s period of time for which he is elected to serve in an office finishes, along with the other members of the cabinet, or the Attorney General is dismissed by the President.” With the Decision of the Constitutional Court, President Susilo Bambang Yudhoyono subsequently issued Presidential Decree Number 104P/2010 dated 24 September 2010 on the dismissal of Hendarman Supandji as Attorney General. Consequently, President Susilo Bambang Yudhoyono (SBY) is currently looking for a figure who is capable of serving as Attorney General. The public generally expect that President SBY will be able to choose the right person to lead the Public Prosecution Service as one of the law enforcement institutions. This is important because law enforcement in Indonesia is still weak, which can be seen from many cases involving judicial corruption practices. In addition, the candidate Attorney General must meet complex requirements to create a Public Prosecution Service that meets the people’s expectations, i.e. someone who has the ability to lead, who is professional, dedicated, honest, and willing to sacrifice, can apply good governance and can become a role model for his subordinates and the public. Those things should be the guidelines for choosing the Attorney General, and it should not only be about whether the candidate Attorney General comes from within or outside the Public Prosecution Service. Certainly we all hope that President SBY will be capable of choosing an Attorney General according to the above criteria and will not be influenced by politics in electing the Attorney General, so that he can choose a better Attorney General for the sake of all the Indonesian people.


Inside The Firm

OUR ACHIEVEMENT

From left to right: Lusiany Kosasih, S.H. Patricia Ann Winarta, BA., M.H. Ponco Nugroho, S.H. Dr. Frans H. Winarta, S.H., M.H. Richard Suryanto, S.T. Randolph Jay Winarta, S.E., M.M. Retno Wulandari, S.H., M.H. Dhanu Wardhana, BA.

Frans Winarta & Partners was founded in 1981. We have grown to become one of a number of prominent law firms in Indonesia. Since it was founded in 1981, Frans Winarta & Partners has received numerous awards from respected legal publications and directories. We have also won various cases that have been recognized as a landmark decision, the latest cases we won are:

OUR ACHIEVEMENTS

1. Representing NUFFIC NESO previously known as Netherlands Education Centre (NEC), as Netherlands organization for international cooperation in higher education and research, as Respondent of Cassation IV/ Appellee IV/ Defendant IV in a case of libel versus Dermawan Nugroho & Co Law Firm, et al., as the Petitioners of Cassation/Appellants/Defendants at the Supreme Court of the Republic of Indonesia. The Supreme Court of the Republic of Indonesia issued a decision dated 14 August 2009, which basically dismissed the petition for cassation submitted by the Petitioners of Cassation/Appellants/Defendants.

2. Representing PT Pesona Natasha Gemilang, a beauty treatment company as the Respondent of Cassation/Plaintiff in a case of mark annulment of the name and logo of “NATASHA SKIN CARE” versus Then Gek Tjoe as the Petitioner of Cassation/Defendant at the Supreme Court of the Republic of Indonesia. The Supreme Court of the Republic of Indonesia issued a decision dated 22 June 2010, which basically dismissed the petition for cassation submitted by the Petitioner of Cassation/Defendant.

3. Representing PT Pesona Natasha Gemilang, a beauty treatment company as Defendant I and Dr. Gideon Hartono as Defendant II in a case of copyright annulment of the logo of “NATASHA” versus Then Gek Tjoe as the Plaintiff as the Commercial Court at the District Court of


Semarang (“Commercial Court of Semarang”). The Commercial Court of Semarang issued a decision dated 14 July 2010, which basically dismissed the Plaintiff’s claim.

4. Representing PT Pesona Natasha Gemilang, a beauty treatment company as the Respondent of Cassation/Plaintiff in a case of mark annulment of the name and logo of “NATASHA” against Then Gek Tjoe as the Petitioner of Cassation/ Defendant at the Supreme Court of the Republic of Indonesia. The Supreme Court of the Republic of Indonesia issued a decision dated 26 July 2010, which basically dismissed the petition for cassation submitted by the Petitioner of Cassation/Defendant.

5. Representing PT Anugrah Argon, a pharmaceutical distributor as Appellee I/Defendant I and Appellee II/Defendant II, and PT Dexa Medica, a pharmaceutical company as Appellee III/Defendant III in a claim based on tort versus Hagus Suanto as the Appellant/Plaintiff at the High Court of Jakarta. The High Court of Jakarta issued a decision dated 30 July 2010, which basically affirmed the decision of the District Court of South Jakarta, against which the appeal was filed.

6. Representing Mr. Ir. Muhamad Usman Rahim, a

contractor, as the Plaintiff in a civil case based on breach of contract versus PT Monteleo Perkasa as Defendant I and Mr. Ir. Nanang Puguh Wibowo as Defendant 2 at the District Court of Central Jakarta. The District Court of Central Jakarta issued a decision dated 10 August 2010, which basically accepted the Plaintiff’s claim in part.


New Comers

Kelly Sam, SH., graduated from the Law Faculty of Parahyangan Catholic University in Bandung in 2007. In 2008 he took a post graduate program at Parahyangan Catholic Universityfocusing on Business Law and he is currently in the process of drafting his thesis. Starting his carrier as an intern in 2007 at several law firms in Bandung, he obtained a Mediator Certificate in 2007 and, from 2007 to the present, he is registered as a non-Judge Mediator at the District Court of Bandung. In 2010 he obtained an Advocate License from PERADI, and joined Frans Winarta & Partners in June 2010. He focuses on Litigation, Alternative Dispute Resolution and Arbitration.

Melisa Carmelita, SH., earned her Bachelor of Law degree from Atma Jaya Catholic University. She graduated with Summa Cum Laude, majoring in Business law. She served as the president of the Foster Children Organization (Gerakan Anak Asuh). Melisa is also one of the founders of Atma Jaya Moot Court Guild and her team won several major competitions. Prior to joining Frans Winarta & Partners Law Firm, she worked as an in-house lawyer at one of the prestigious banks in Jakarta, where she was involved in international and local banking and corporate legal issues. She focuses on corporate and commercial law.

Ketut Bayu Badra, SH., earned his Bachelor of law degree from the University of Indonesia in 2008, majoring in Transnational Law. Before joining Frans Winarta & Partners Law Firm in 2010, he worked for another law office, specializing in International Humanitarian Law & Human Rights Law. He focuses on Research and Development.


W I N A R T A I P P R A C T I C E

I. PATENT • PATENT SEARCH • PATENT APPLICATION • REQUEST FOR SUBSTANTIVE

EXAMINATION • WITHDRAWAL OR

ABANDONMENT • RECORD OF CHANGES • ANNUITY PAYMENT

II. TRADEMARK • TRADEMARK SEARCH • TRADEMARK APPLICATION • RENEWALS • OPPOSITION • LICENSING • RECORD OF CHANGES

III. INDUSTRIAL DESIGN • INDUSTRIAL DESIGN SEARCH • INDUSTRIAL DESIGN

APPLICATION • LICENSING • RECORD OF CHANGES

IV. COPYRIGHT • COPYRIGHT SEARCH • COPYRIGHT APPLICATION • LICENSING • RECORD OF CHANGES

V. TRADE SECRET

VI. LAYOUT DESIGN OF INTEGRATED

CIRCUIT

VII. IP LITIGATION

VIII. LICENSING

IX. FRANCHISING

X. UNFAIR COMPETITION

XI. ALTERNATIVE DISPUTE

RESOLUTION (ADR)

XII. ARBITRATION

Organization/Members of: APAA,INTA, AIPLA, AIPPI, AIPA, IIPS and AKHKI Email : [email protected] Website : www.winarta-ip.com

Special Message From the General Manager

Dear clients, colleagues, associates and friends,

Winarta IP Practice (WIP) has been meeting the Intellectual Property needs of distinguished international clients nationally and globally for years.

Throughout its growth, WIP has maintained its unwavering commitment to its mission of providing clients with the best quality service available in the field of IP protection in Indonesia. WIP firmly believes that, only through strong protection of Intellectual Property Rights (IPRs), can Indonesia truly develop a dynamic and innovative business environment that will contribute to sustainable economic progress and development, real growth in the Gross National Product (GNP) and increased social welfare.

This commitment to IP protection comes to life as part of our continued involvement with international organizations.

Our main goals are to help provide our clients with the protection their efforts deserve and to help further the advancement of the Indonesian people. To this end, we greatly appreciate the continued business and the relationship we have developed over the years. I assure you that we shall continue to do our utmost in providing you with the highest levels of service.

We thank you for all the trust and support throughout the years.

We look forward to further serving you and to your continuous support and cooperation.

Best Regards,

Patricia Ann Winarta, BA., M.H.

mailto:[email protected]�

http://www.winarta-ip.com/�


ARTICLES

Effect of Work Agreement for a Specified Period of Time in

Languages other than Indonesian Language

Written by: Retno Wulandari, S.H., M.H.

(Partner of Frans Winarta & Partners)

Regulation on Work Agreement in Indonesia The Civil Code, as the law governing agreements, gives freedom for parties to make an agreement (freedom of contract). However, the Civil Code provides a limitation that the freedom of contract cannot be in conflict with propriety, customs or the law (Article 1339 of the Civil Code). This also applies in the making of work agreements between workers/laborers and entrepreneurs/companies. From the aspect of laws and regulations, the limitation applies to not only laws and regulations on manpower, but also other laws and regulations. Regarding this work agreement, Law No. 13 of 2003 concerning Manpower (“Law No. 13/2003”) stipulates that a work agreement must be written in the Indonesian language. In practice, we often find em-ployers/entrepreneurs/companies make work agreements in a foreign language, among others, in English.

This often occurs because the employers/entrepreneurs/companies are mostly managed by foreign workers or are Partly owned by foreign parties (majority). In addition, for practicality, companies prefer to make work agreements in a foreign language (usually in English), so that they will be understood or easily discussed with the principals abroad. In addition to the Law No. 13/2003, the regulation on the obligation to make an agreement in the Indonesian language is also stipulated in the Decree of the Minister of Manpower and Transmigration No. 100 of 2004 concerning Stipulation for the Implementation of Employment Agreement for a Definite Period (“Decree No. 100/2004”). Article 15 paragraph (1) of Decree No. 100/2004 stipulates as follows:

“(1) Employment Agreement for a Definite Period (“PKWT”), which is not made in Indonesian Language and Latin letter, is amended to be an Employment Agreement for an Indefinite Period since the effective date of employment relationship.”

The stipulation is the clarification of Article 57 of Law No. 13/2003, as follows:

“(1) A work agreement for a specified period of time shall be made in writing and must be written in the Indonesian language with Latin alphabets.

(2) A work agreement for a specified period of time, if made against what is prescribed under


subsection (1), shall be regarded as a work agreement for an unspecified period of time.

(3) If a work agreement is written in both the Indonesian language and a foreign language and then differences in interpretation between the Indonesian text and the one in the foreign language rise, then the Indonesian version of the agreement shall be regarded as the authoritative one.”

Legal Effect of PKWT Using only a Foreign Language If a PKWT is made in languages other than the Indonesian language, then in case of termination of the employment relation by the employers/entrepreneurs/companies, the applicable law becomes a problem. Referring to Law No. 13/2003, especially Article 62 of Law No. 13/2003, if the employers/entrepreneurs/companies shall terminate an employment relation based on a PKWT, the employers/entrepreneurs/com-panies are obliged to pay compensation to the workers/laborers in the same as the amount of wages from the point of termination until the expiration of the agreement. For clarity, we quote Article 62 of Law No. 13/2003:

“If any one of both sides in a work agreement for a specified period of time shall terminate the employment relation prior to the expiration of the agreement, or if their work agreement has to be ended for reasons other than what is given under subsection (1) of Article 61, the side that terminates the relation is obliged to pay

compensation to the other side. The amount of the compensation pay shall be the same as the amount of wages that the worker/ laborer in the work agreement is entitled to receive from the point of termination until the expiration of the agreement.”

Article 59 of Law No. 13/2003 stipulates as follows:

“… (4) A work agreement for a specified

period of time may be made for a period of no longer than 2 (two) years and may only be extended one time for another period that is not longer than 1 (one) year.

(5) Entrepreneurs who intend to extend work agreements for a specified period of time they have with their workers/ laborers shall notify the said workers/ laborers of the intention in writing within a period of no later than 7 (seven) days prior to the expiration of the work agreements.

(6) The renewal of a work agreement for a specified period of time may only be made after a period of 30 (thirty) days is over since the work agreement for a specified period of employment comes to an end; the renewal of a work agreement for a specified period of time may only be made 1 (one) time [once] and for a period of no longer than 2 (two) years.

It means that a worker/laborer who has entered into a PKWT with an employer/company for 2 (two) years and, in the 8th month, the employer/company


decides to terminate the work agreement, the balance wages for 16 months must be paid by the entrepreneur. But the application of this provision is questioned if the PKWT has been made in languages other than the Indonesian language. Article 57 paragraph (2) of Law No. 13/2003 in conjunction with Article 15 paragraph (1) of Decree No. 100/2004 stipulate that, if a PKWT is not made in the Indonesian language, the PKWT is amended to be an employment agreement for an indefinite period (PKWTT). In case of termination of an employment relation based on a PKWTT, the applicable provision is Article 156 of Law No. 13/2003. The following is a quote of Article 156:

“(1) Should termination of employment take place, the entrepreneur is obliged to pay the dismissed worker severance pay and or a sum of money as a reward for service rendered during his or her term of employment [reward-for-years-of-service pay] and compensation pay for rights or entitlements that the dismissed worker/ laborer has not utilized.

(2) The calculation of severance pay as referred to under subsection (1) shall at least be as follows: a. 1 (one)-month wages for years

of employment less than 1 (one) year;

b. 2 (two)-month wages for years of employment up to 1 (one) year or more but less than 2 (two) years;

c. 3 (three)-month wages for years of employment up to 2 (two) years or more but less than 3 (three) years;

d. 4 (four)-month wages for years of employment up to 3 (three) years or more but less than 4 (four) years;

e. 5 (five)-month wages for years of employment up to 4 (four) years or more but less than 5 (five) years;

f. 6 (six)-month wages for years of employment up to 5 (five) years or more but less than 6 (six) years;

g. 7 (seven)-month wages for years of employment up to 6 (six) years or more but less than 7 (seven) years;

h. 8 (eight)-month wages for years of employment up to 7 (seven) years or more but less than 8 (eight) years;

i. 9 (nine)-month wages for years of employment up to 8 (eight) years or more.

…” In practice, not many companies or workers/laborers know that a work agreement must be made in the Indonesian language and the legal consequence if the work agreement is not made in the Indonesian language. If this legal provision is not applied by the em-ployers/entrepreneurs/companies, it is cer-tainly detrimental to the workers/laborers. In the above case, the employers/companies will claim that, with less than 1 (year) of work period, the workers/laborers are only entitled to a 1 (one) month wage, and not 16 (sixteen) month wages. The employers/companies will refer to Article 57 paragraph (2) in conjunction with 156 paragraphs (1) and (2) of Law 13/2003 in conjunction with


Article 15 paragraph (1) of Decree No. 100/2004. On the other hand, the workers/laborers will claim that the legal provisions have been known by the employers/companies and the em-ployers/companies intentionally give a work agreement to the workers/laborers in a non-Indonesian language, so that the compensation for termination will be smaller. In case of such dispute, while waiting for the revision of the legal provision, an amicable settlement is the most appropriate for the employers/companies and the work-ers/laborers. To avoid such legal problem, the employers/companies and the workers/laborers must understand that a work agreement must be made in the Indonesian language. In addition to Law 13/2003 and Decree No. 100/2004, the regulation on the use of the Indonesian language is all forms of commercial transactions and documentation (including work agreements) is also stipulated in the law concerning the Indonesian language, i.e. Law No. 24 of 2009 concerning the Flag, Language, State Symbol and National Anthem.

Controversy Over Corruption And Public Service

Written by: Dr. Frans H. Winarta, S.H., M.H.

(Managing Partner of Frans Winarta & Partners)

A good public service by bureaucrats should not always involve corruption or financial manipulation to enrich oneself. A lot of public service contracts that are given

to the private sector actually improve the image and increase the quality of the public service agencies that provide services to the people who need them. However, currently in Indonesia there has not been any clear policy from the government on whether or not a contract for public service that becomes the responsibility of a government agency can be given to the private sector. This often creates controversies and prolonged public debates and takes a lot of time and energy. In fact, the overall development plan needs to be balanced with efficiency, speed, and effectiveness, and should not be long-winded. Considering that there has not been any clear policy from the government on that matter, the Sisminbakum (a legal administration system website) was often debated, extending to the matter of law enforcement. Whether the Sisminbakum that was given to the private subcontractor PT Sarana Rekatama Dinamika (PT SRD) could be categorized as a criminal act of corruption became such a long polemic that Attorney General Hendarman Supandji was accused of illegally serving as Attorney General in 2nd United Indonesia Cabinet. In fact, notaries and business people feel the benefits of the Sisminbakum, which cuts the long bureaucracy that is filled with intrigues and illegal payments and is long-winded. Within one week, the registration of legal entities such as limited liability companies and foundations can be completed. This is obviously different compared with the many months it took in the past. However, law enforcers, especially the Attorney General’s Office, consider that this Sisminbakum project inflicted losses upon the state. On the other hand, the accused party persisted in stating that in


the Sisminbakum project there was not any loss upon the state budget and it was not against the law, so the Sisminbakum project is not a criminal act of corruption. If we see the satisfaction of the public and the notaries, it is clear that the Sisminbakum project is satisfactory and provides good and beneficial services to the public. There is a suspicion that the Sisminbakum case was created by law enforcers and this is heard often at the House of Representatives and among observers, although there are pros and cons. The problem now is how the Susilo Bambang Yudhoyono administration will take the step to improve public service that is good and expeditious. In Australia, for example, the postal service is given to the private sector and the public is satisfied with the service. Currently there is a plan to give railroad services to foreign private companies in Indonesia in order to improve land transportation services, i.e. the railroad, as the vital mass transportation for the public, especially the lower middle class. This is caused by the many accidents and the closing of many routes to cut losses and the delays in train schedules, which is the central issue and proof of the weak policy on public service in Indonesia. Moreover, if we talk about the drinking water that is a far cry from high quality and hygiene, there must be a complete overhaul in the policy on public service in Indonesia. The Sisminbakum is presumably not against the law, did not inflict any loss upon the state, did not enrich any person or legal entity, and it is even beneficial for the public, so it is difficult to categorize it as a criminal act of corruption. To avoid any polemic that takes time and energy, the government had better take concrete and decisive steps to allow

government agencies to give certain public service contracts to the private sector and foreign investors for the good of the people. As long as it does not burden the state budget (APBN) and brings many benefits for the people, the policy must be taken, so that made-up cases such as the case of making the Sisminbakum a criminal act of corruption will not happen again in the future. A good public service should not be identical with corruption. The important thing is that the supervision must be stern and organized. As long as the policy is not against the law and does not inflict any loss upon the state, the private sector can play a part in improving public service. Therefore, the Corruption Eradication Commission (KPK) must have sharp eyes and ears everywhere.

The Plan To Move The Nation’s Capital From Jakarta To

Palangkaraya



Jakarta as the capital of the Republic of Indonesia is the center of government and economy in Indonesia. Various types of trading activities and important industries from many sectors manage to attract investors to invest in Jakarta. Considering that Jakarta is the center of economy and government, it is not surprising if Jakarta has become a city with the largest number of population compared with other large cities in Indonesia. Almost all land in Jakarta is filled with buildings. In addition, the increasing volume of vehicles which is not


followed by the increasing number of public roads worsens traffic congestion in Jakarta. This obviously causes the space and mobility of Jakarta’s denizens to be restricted and slow. The number of Jakarta’s population in 2010, according to the National Development Planning Agency (Bappenas), is estimated at 9.5 million. This population density obviously affects the performance and productivity of its denizens who work in the government or in the private sector. In addition, the population density also causes the imbalance between the city’s infrastructure and the available land in Jakarta, so it can create potential conflicts in the use of space. The following are the effects of Jakarta’s population density: 1. Congested traffic in Jakarta becomes

worse and it is estimated that in 2015 there will be total congestion that will paralyze Jakarta;

2. The worsening congestion added by the long distance between the home and the workplace can cause physical and psychological damage to a person;

3. Flood and draught increase because aquifers have been reduced;

4. Prosperity is not evenly distributed because the development and economy are centered in Jakarta;

5. The increasing population is not followed by the increasing number of work opportunities, so it has the potential of increasing the crime rate in Jakarta;

The population density in the Java Island and especially in Jakarta has become frightening. Every year Jakarta’s population increases and one of the causes is the increasing urbanization from other regions to Jakarta. Thus urbanization is because Jakarta functions as the centre of government and economy, and also because of the uneven development in the regions, so all economic activities are centered in Jakarta. The many functions served by Jakarta, i.e. the center for government, commerce, finance and industries, have encourage the discourse on moving the nation’s capital to another city. The role played by Jakarta should be changed, considering the current and future conditions of Jakarta. The centers of government and economy should not be in one city, and Jakarta should only be the center of economy, while the center of government is in another city. If this move is not considered soon, Jakarta’s condition will become more of a mess and it will have an impact on the destruction of Jakarta’s environment. The separation between the center of economy and the center of government will have an impact especially on the center of government, whose surroundings are not as crowded as those of the center of economy. This will affect the work efficiency of the government, and the mobility between departments will become easier because it will not be hampered by traffic congestion. So far there has been a lack of mobility between departments, where traveling between one department and another takes quite a long time due to congested traffic. This obviously reduces the performance and productivity of an state agency or institution.


Currently there is another discourse on moving the nation’s capital from Jakarta to another city. Actually the discourse on moving the nation’s capital is nothing new. The government of the Dutch Indies once made preparations to move the capital from Batavia to Bandung, but this plan failed. Subsequently, during the revolution, Indonesia’s capital was moved to Yogyakarta and Bukittinggi, West Sumatera. However, afterwards, it was moved back to Jakarta. President Soekarno himself once discoursed on moving the nation’s capital to Palangkaraya, but it was never realized. There are a few things to be considered with regard to the discourse on moving the nation’s capital to another city: the city that is going to be the nation’s capital should have a good city planning that supports government activities, the distance between Jakarta as the center of economy and the other city as the center of government should not be too far, the natural condition should be relatively safe, there are new socio-cultural factors, and there must be large amounts of funds for the process of moving the nation’s capital. One of the favorite regions to become the nation’s capital, to replace Jakarta, is Palangkaraya (Central Kalimantan). As explained above, moving the nation’s capital to another region that is still in the Java Island is not effective, considering the rapidly increasing population in the Java Island. Therefore, the proposal of making Palangkaraya the nation’s capital is considered the most realistic. Palangkaraya as the Provincial Capital of Central Kalimantan that is located in central Indonesia, is suitable to become the nation’s capital because it is geographically trategic. Palangkaraya has the function as the center of development for the Central

Region, making this city very strategic. It has a vast area with potential natural resources and its dense forest can become an urban forest that provides protection from air pollution and land destruction. In addition, Palangkaraya also has the potential for development, from the utilization of natural resources including the forests, to the improvement on educational and health facilities, and transportation infrastructure such as roads, airports, and so forth. The topography of Palangkaraya is relatively flat, most of which are marsh lowlands with a height between 15 and 35 meters above sea level. The area of Palangkaraya is around 2.678,51 square kilometers, the vastest city in Indonesia. With a population of 193.251 in 2005, the population development of Palangkaraya is not as rapid as those in big cities. In addition, geographically the Kalimantan Island is a region that is safe from earthquakes and the Palangkaraya region is near the borders of other countries. This will cause the central government to pay more attention to the borders. The above factors can support Palangkaraya to become one of the new prospective capitals of the Republic of Indonesia. By moving the center of government to a city outside of the Java Island, hopefully the development in the region concerned will improve and it will advance the region. And hopefully there will be an evenly distributed population, so that it will not only be centered in the Java Island. Moving the nation’s capital to Palangkaraya will automatically develop the region, which in turn will develop the regions around Palangkaraya. In addition, hopefully there will be a balanced development between


the eastern and western Indonesia. Therefore, some of Jakarta’s population and the Java Island’s population in general can move to Palangkaraya, and the transmigration program can run effectively, especially in the regions around Palangkaraya. Moving the nation’s capital from Jakarta to Palangkaraya will obviously move the government’s infrastructure such as the State Palace, the Merdeka Palace, the Parliament Building, the embassies of friendly countries, department offices, state institution offices, and other supporting infrastructure. In addition, there should also be infrastructures that must be possessed by a nation’s capital, such as roads that can be accessed by transportation from every region around Palangkaraya to Palangkaraya. The separation between the center of economy and the center of government can also have security benefits. For example, if there is a political turmoil in the center of government that causes a clash between two opposing masses, it will not disturb economic activities because the center of government and the center of economy are in two separate cities. Moving the nation’s capital from Jakarta to another region obviously requires large amounts of funds. Therefore, the discourse on moving the nation’s capital must be reviewed and scrutinized from various aspects, so that it will be beneficial for all. In addition, the solution or the discourse on moving the nation’s capital should not be seen as the emotional and final way to resolve the complex population density problems in Jakarta.

If the nation’s capital is moved to Palangkaraya, it will not cause any amendment to the 1945 Constitution. The article in the 1945 Constitution that is related to the Capital is Article 2 paragraph (2) of the 1945 Constitution, as follows:

“The People’s Consultative Council shall convene in a session at least once every five years in the capital of the state

”.

Article 2 paragraph (2) of the 1945 Constitution only states that the People’s Consultative Council session will be held in the capital of the state, and it does not state that “it should be held in Jakarta”. Thus, if the nation’s capital is moved to Palangkaraya, it will not cause any amendment to the 1945 Constitution. Moving the nation’s capital from Jakarta to Palangkaraya will only cause an amendment to a few laws, among others, Law No. 29 of 2007 regarding the status of the Special Capital District of Jakarta as the Capital of the Unitary State of the Republic of Indonesia, Meanwhile, in Law No. 12 of 2008 concerning the Second Amendment to Law No. 32 of 2004, there are some articles related to the position of Jakarta as the nation’s capital, which should be revised, among others Article 226 of Law No. 32 of 2004, and Article 227 of Law No. 32 of 2004 concerning Regional Government, related to the position of Jakarta as the nation’s capital. Those amendments must also be followed by the enactment of a law which declares Palangkaraya as the nation’s capital, and a law which stipulates the status of Palangkaraya as a special capital district, whereas the status of Jakarta will be changed from a special capital district to a province.


Commercialism vs. Right to Education



Kompas newspaper on 28 September 2010 shocked the public, especially the education community because, as we know, the right to education is the constitutional right of every citizen according to the 1945 Constitution and the Universal Declaration of Human Rights and other international instruments such as the International Covenant on Economic, Social and Cultural Rights. The conflict between the NJIS (North Jakarta International School) Foundation as the lessee and PT Summarecon Agung, Tbk, as the land owner should not have caused disruption in the implementation of the education program of the students of the international school that has operated for more than 20 years at that location. At least NJIS has contributed to the promotion of real estate in the area. It can be said that NJIS attracts people who buy property there. What is not realized is that the dispute has prevented hundreds of students from obtaining education safely, orderly and peacefully. This is clearly a civil case and it has not been brought to court, so both parties must respect the law and do not take the law in their own hands. There is news that the land owner has threatened to vacate the land by force because the rental contract has expired. However, it is to be regretted that there is a rumor about unidentified people, who are not law enforcers, threatening to vacate the land. If this really happened, then considering that

this is a civil dispute, there are other more civilized and orderly ways according to the prevailing laws. We can only imagine how hundreds of students of NJIS are terrified and parents are worried about their children’s education, not to mention the fear of the teachers caused by this dispute. This makes the teachers reluctant to teach before there is a guarantee for their safety and legal certainty. It is regrettable that this sort of incident could happen in the reformation era. There must be another more civilized and orderly solution according to the prevailing law. We need to quote some sources of law which guarantee a child’s right to education, as follows:

- Article 9 of Law Number 23 of 2002 concerning child protection: “Every child is entitled to education in order to develop his personality and intelligence according to his interest and talent”.

- Article 49 of Law Number 23 of 2002 concerning child protection: “The state, the government, families, and parents are obligated to provide as many opportunities as possible for children to obtain education”.

- Article 28C paragraph (1) of the 1945 Constitution: “Every person shall have the right to develop him/herself through the fulfillment of his/her basic needs, the right to obtain education and to benefit from science and technology, arts and culture, for the purpose of improving the quality of his/her life and for the welfare of the human race.”


- Article 26 of the Universal Declaration of Human Rights:

“(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children”.

- Article 13 of the International Covenant on Economic, Social and Cultural Rights:

“The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and

friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace”.

It is clear from the sources of law that it is not important if the students of NJIS are children of foreign diplomats, Indonesian citizens or otherwise. There must be protection of their human rights to obtain education orderly, peacefully and safely. The right to education is a basic right that has to be respected by everyone and cannot be ignored for commercial and land ownership reasons. This dispute must be mediated by the government because it involves human rights, constitutional rights and the right to education. The tug-of-war between the lessee and the land owner is not merely a civil matter, but it also involves fundamental human rights and the one who can protect the students of NJIS is the state, as instructed by the 1945 Constitution. Once again the government is expected to act firmly in this education problem, if we want to see our younger generation grow healthy, educated, and cultured, have character and obtain good education, so that they can advance and compete in the international community, equal to other nations. Commercial interests should give way to national education in order to reform our education system, which is left behind by other nations. Without human resources that are tough, educated and qualified, it will be difficult for us to compete with other nations. Therefore, we must concern ourselves with this incident and hopefully this civil dispute can be settled satisfactorily for both parties. Let’s hope that commercial interests can be


reduced by prioritizing national education in order to improve the quality of the Indonesian people. Referring to the sources of law, the government c.q. the Minister of Education, the Parliament, the Regional House of Representatives, the Police, the Child Protection Commission, the Human Rights Commission, the Governor of Jakarta, the Mayor of North Jakarta and other institutions related to the education program should pay attention to this shocking incident, because there is a rumor about people threatening to vacate the land without regard to the children’s constitutional right to education. Speaking of constitutional rights, the state c.q. the government must intervene and guarantee the children’s safety in obtaining education, especially the students of NJIS, so that they can continue their education while the NJIS Foundation and PT Summarecon Agung, Tbk negotiate to settle their dispute. This is another complex test case for the government to sort out the conflict, after facing the HKBP worshipper’s case in Ciketing, Bekasi. If the government can settle this human rights and constitutional rights case, it will satisfy the public. On the other hand, if the government fails to settle this perplexing case, there will be public outcry. Hopefully this article will attract the attention of the authorities and the disputing parties.

Deponeering as Attorney General’s Discretionary Power



The dichotomy on the candidate attorney general keeps rolling and comments and opinions on whether the candidate Attorney General of the Republic of Indonesia should come from an “insider” (career prosecutor) or an “outsider” (non-career prosecutor) have become a hot topic. It is understandable that the prosecutors prefer to have career prosecutors as Attorney General because they are deemed to have understood the function and mission of the prosecutor, so it will maintain the continuity of the work and performance of the Attorney General’s Office. On the other hand, those who support non-career prosecutors hope for internal reform and purge, so that prosecutors can work optimally and be free from judicial corruption practices. Those two opposing sides obviously have logical and fundamental reasons. Thus, it all depends on President Susilo Bambang Yudhoyono’s policy in determining his priority in choosing the Attorney General who will spearhead law enforcement. In the midst of the appointment of a new Attorney General to replace Hendarman Supandji, another hot topic is the case of Bibit-Chandra, following the Supreme Court’s ruling, which overturned the Motion to Reconsider filed by the Attorney General’s Office on the overturning of the Letter to Cease the Prosecution by the District Court of South Jakarta. This means


that those two KPK leaders will stand trial on criminal charges of extortion. A lot of people hope that deponeering (the Dutch term for dropping charges) can be applied in this case. Therefore, we need to see the origin of deponeering in its country of origin, the Netherlands, as the Attorney General’s discretionary power, and its background. Our legal system, which comes from the French-Dutch civil law system, considers the prosecutor not as a representative of the people and not neutral like a judge. The prosecutor tends to be influenced by the government and is not separated from the government’s policy, especially with regard to law enforcement. History shows that, when the Netherlands was liberated from France in 1813, there was a question of whether the prosecutor was part of the executive or part of the court (judicative) or part of both. By King William, the prosecutor’s position as public prosecutor was placed under the government, just like any other public officials with the same hierarchy. King William, who ruled the Kingdom of the Netherlands from 1813 to 1840 during the restoration and was an autocratic king, wished to ascertain his influence on the independent court by placing the prosecutor under the government. He thought that the prosecutor could not be separated from the government’s influence, especially with regard to law enforcement. By placing the prosecutor under the government, the king wished to ascertain his influence on the court. At that time, the judge was considered as “gens de la loi” (Law Official) and the public prosecutor was considered as “gens du Roi” (The King’s Man). The prosecutor, according to the king, was an agent of the government. Therefore, the

prosecutor represented the government in court. The prosecutor was not the people’s representative and should not be like a judge. The prosecutor’s function was as the advocate of legal order, which he should maintain. At that time, the prosecutor served the government’s interest. This way, the government could influence the judge. It means that the government’s way of thinking at that time was to serve its own political interest through law enforcement by its own means. In short, to maintain legal order was to serve the government’s political interest at that time. On the other hand, the judge’s duty is to protect the people from the government, especially when the government violates the individual right and the human rights. Actually, the prosecutor has the same duty in upholding justice and protecting the people. The way of thinking about the function of the prosecutor (including the Attorney General) obviously influenced the leaders of Indonesia, which used to be a Dutch colony, who placed the prosecutor (including the Attorney General) under the government. Just like King William, every person in power wishes to maintain his power, and some rulers even wish to maintain their power forever. The executive wishes to influence the other branches of government. There is also the legislative’s effort to control the executive, so that it does not influence the judicative. Thus, there is always this tug-of-war among the three branches of government.


Principle of Discretionary Power of the Prosecutor

One of the most important powers of the prosecutor in the Netherlands is the Principle of Opportunity or the Principle of Discretionary Power. After the Dutch independence in 1813, the French law, i.e. Code d’Instructive Criminalle (Code of Criminal Procedure) and the penal code were still applicable for a certain period of time. In 1926, this Principle of Opportunity was included in the Dutch Code of Criminal Procedure, which was called seponer in French or seponeren in Dutch, which means to set aside a case and also means a decision to take no further action or classer sans suite. This decision was called sepot, and in Indonesia it was later known as deponeering, which means to deposit. In the Dutch prosecution system, it is allowed for sepot in a criminal case. Basically, the principle of opportunity allows the public prosecutor to choose to prosecute a case or not. The prosecutor can set aside the prosecution of a case based on, or for the reason of, “public interest”. This statement can be made at every level of court. In the Netherlands, the prosecutor has 2 principal powers, i.e. the opportunity power; and the prosecutor’s power to instruct the police to investigate a case or not, or to determine the type of crime that must be investigated as a priority. In the case of deponeren, according to Piet – Hein A. J. Cremers, a public prosecutor in the Appellate Court of Arnhem (the Netherlands), in his article entitled “Fight against Criminality: Relation between Public Prosecutor and Police”, quoted in Demo-Droit Themis magazine, ”The Role of the

Public Prosecutor Officer in a Democratic Society” Messine (Sicily), 5-7 June 1996, the following things must be considered in determining deponeering:

1. Whether the suspect will improve his behavior;

2. Whether legal norms on which a criminal charge is based will be more often violated if the charge is set aside;

3. Whether there will be public unrest if the criminal act is not prosecuted.

All these can be answered not on a case-by-case basis, but by criminology research. Back to the case of Bibit-Chandra, if we see the history of deponeering or the principle of opportunity, then for the sake of public interest, the case of Bibit-Chandra should receive deponeering. This is stated in Article 35 point (c) of Law Number 16 of 2004 on the Prosecutor of the Republic of Indonesia, as follows:

” The Attorney General has the duty and power:

... c. To set aside a case for public interest”.

Deponeering of the case of Bibit-Chandra is needed due to the alleged efforts to weaken KPK, and KPK, which was formed with great difficulty, and is in the frontline when it comes to corruption eradication, must be saved from the efforts to weaken it, for the sake of public interest. Team Eight, appointed by President Susilo Bambang Yudhoyono, should have recommended deponeering from the beginning, and not an out-of-court settlement in the case that already had the status of P-21 (ready to be prosecuted as the evidence is complete).


Nevertheless, it all comes down to President Susilo Bambang Yudhoyono’s policy in leading the corruption eradication program. This requires his decisiveness and courage to make a decision that can save KPK.

The Importance of “Marks” in Fair Business Competition

Written by: Neneng Sri Wiyanti

(Registered IP Consultant of Winarta IP Practice)

and Fitri Manik (Staff of Winarta IP Practice)

Intellectual Property Rights (IPR) is a right as a result of creations of the mind which produce a product or system that is useful for mankind. Basically, IPR is the right to enjoy a financial incentive for the creation of intellectual property. Objects under IPR are creations of the human mind.

IPR system is a private right, where a person is free to submit an application or to register his intellectual property or not. The exclusive right granted by the state to the IPR owner is an appreciation of his creation, so that other people will be encouraged to develop it further, and with the IPR system, public interest is determined through the market mechanism. MARKS Marks are one common type of IPR. Marks have been used for hundreds of years to give a distinctive sign of a product for the purpose of giving an indication of origin. Marks and others of its type were developed by traders before

industrialization. We knew a form of marks from a hallmark in the UK for goldsmiths, silversmiths, and cutters. This system of official sign was continually used because it could distinguish one producer from another.1

The development of international trade has created the need for international mark protection. In 1883 in Paris there was a convention on industrial property rights, which became a historical milestone for the development of international mark regulations.

The need for legal protection of marks developed with the increased number of people who committed infringement. Moreover, the world of trade has become more developed, and transportation has become better, and with promotion, the marketing area of a product has become wider. These conditions add to the importance of marks, i.e. to distinguish the source of origin of a product, and its quality, and to have a distinctive sign to prevent infringement. In turn, the expanding market also needs adjustments in the legal protection system of marks used on products being traded.

2

As a consequence of international trade, there is a dire need for mark regulations that are flexible, and simple in accordance with the position of marks as the strategic part of marketing. In 1973 in Vienna the United States and the United Kingdom, as leaders of other states, signed the Madrid Agreement, i.e. an international Trademark Registration Treaty.

3

1 Muhamad Djumhana . R. DJubaedillah, Hak milik

intelektual Sejarah, teori dan prakteknya di Indonesia, Bandung :Citra Aditya Bakti,1993, hal 117

2 ibid, hlm. 118 3 ibid


Indonesia recognized the Right to Marks for the first time during the enactment of the law on industrial property rights, i.e. in "Reglement Industrieele Eigendom Kolonien" Stb 545 in 1912, which was replaced by Law No. 21 of 1961 on Company Marks and Commercial Marks. Subsequently it was also replaced by Law No. 19 on 1992 on Marks, as amended by Law Number 14 of 1997 on Amendment to Law Number 19 of 1992 on Marks.4

4 ibid

It has also been replaced by LAW NUMBER 15 OF 2001 ON MARKS (“Law on Marks”).

The following are quotations from

the Trademark Law: Article 1 point 1 of the Law on Marks ”Mark shall mean a sign in the form of a picture, name, word, letters, figures, composition of colours, or a combination of said elements, having distinguishing features and used in the activities of trade in goods or services.” Article 3 of the Law on Marks “The right to a Mark is the exclusive right granted by the State to the owner of a Mark which is registered in the General Register of Marks for a certain period of time, to himself use said Mark or to grant permission to another party to use it.” Article 1 point 5 of the Law on Marks “Application shall mean the application for registration of a Mark that is filed in writing at the Directorate General.”

DEVELOPMENT In the global trade era, in line with international conventions that have been ratified by Indonesia, the role of marks becomes very important, especially to maintain fair business competition.

Marks, one common type of IPR, like other types of IPR, face problems that have developed along with the development of science and technology. In its early development, the problems were very simple, i.e. they only related to how to posses and use for any purpose the things that a person has found, or invented with his power or intellect; who is entitled to be the owner of a creation if the materials come from other parties; and so forth. An application for a Right to Marks in Indonesia is not too complicated. The right to marks can be granted based on an application, after going through the process of application, examination and publication, and the issuance of a certificate if the process has been completed and the result of the examination states that the mark application can be registered. In the last decade, problems involving Intellectual Property Rights have become even more complex. The problems involve not only intellectual property rights, but also many interests related to intellectual property rights. Economy and politics have become an inseparable part of the problems surrounding intellectual property rights.

Intellectual property rights have become the most important part of a country in industrialization and trade. It is commonly


recognized that the economic development of a country depends on its trade, which eventually depends on its comparative advantage. Comparative advantage very much depends on technological abilities, one of whose elements is intellectual property rights. Thus, intellectual property rights are currently the most strategic part in the economic activities of a country. One actual development and a trend that will stay for the foreseeable future are the widespread globalization in the social, economic and cultural sectors and other aspects of life. The development of information technology and transportation has developed the trade sector rapidly and even placed the world as a single common market. This also means that deceitful business practices are currently developing along with the times. There must be a regulation that can protect entrepreneurs from deceitful practices.

The global trade era can still be maintained if there is a climate of fair business competition. Recognition and protection of Marks play a very important role. Many people misrepresent already known Marks to deceive prospective buyers to buy their products. With mark protection, hopefully entrepreneurs will compete honestly and try to develop their innovation as a result of creations of their mind, so that there will be a climate of fair business competition.

Because the principle of mark registration is “First to File”, the party who registers first is the one granted protection over the mark. Therefore, mark registration is very important before the mark is claimed by any other party. With mark protection,

nowadays entrepreneurs no longer have to be afraid that their creations will be copied by other people. Hopefully with this protection entrepreneurs will maintain their unique characteristics which are their intangible asset in facing business competition that has become more complex.

Date post:	30-Oct-2014
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