Termination of Employment Agreement in Indonesia

The unilaterally termination of employment agreement shall obtain an approval from the Industrial Relation Court unless the company and the respective employee enter into a Mutual Termination Agreement (MTA). It means that unilaterally termination of employment agreement is not recognized under Indonesia Labor Law. Moreover, in the event that there is MTA signed bythe company and the employee, then the said MTA shall be registered to the Industrial Relation Court.

SPORT & BROADCASTING RIGHTS IN INDONESIA

Exclusive Rights of Broadcasting Program included in Copyrights which is stipulated in neighboring rights on Article 42 Indonesia Copyrights Act 2002. A Broadcaster that holds Exclusive Rights shall have a privilege for a sport program.

There are two important issues pertaining to Exclusive Rights ; the ownership of Exclusive Rights and the Exclusive Agreement between league and channel television which excluded the other operators.

Sport Association prefer to sell the exclusive rights collectively, because can maximize the profit particularly the marketing of the game itself. Moreover the revenue of exclusive rights will be used for the activities of Association and also the grass root program in order to maintain the competition among the clubs.

Exclusive Rights Holders

According to Manual Liga Indonesia 2006 ( Indonesia League Manual 2006 ) subsection the Contribution of Badan Liga Indonesia ( Indonesia League Body ) – Participants of Competition Paragraph 4 states that Club has right according to local television broadcast, as long as there’s no national live broadcast. The conclusion, Badan Liga Indonesia (BLI) which part of Indonesia Football Association has an authority to organize the soccer games in Indonesia particularly the exclusive rights of sport program.

Moreover, BLI gives compensation Rp. 20.000.000, – to the Clubs which their game have been broadcasted nationally by broadcasters for each game. The question is whether the amount of compensation fair for the club as the organizer of the game.

Semarang Football Club a few months ago through its manager has protested with live broadcast because from 7 games that his club has participated, 6 games has broadcasted nationally, including home play games. The exclusive right of this competition has given to one of broadcasters in Indonesia. Moreover, PSIS had lost amount of money from tickets sale because of live on air. Semarang Football Club only got profit Rp 50.000.000,-. Meanwhile usually Semarang Footbal club can get Rp.200.000.000,- up to Rp 300.000.000,- each game. In Europe, the Association can lay down ‘the closed time’ in special circumstances which the game will be closed for media until the target of tickets has been sold. The juridical approach the Closed time pertinent to Article 46 EUFA Statute jo Article 71 FIFA Statute.

Article 46 EUFA Statute : “UEFA dan Member Assosiations shall the exclusive rights to authorize audiovisual and sound broadcasting transmission, as well as any other use and dissemination by picture and sound, either live or recorded, in whole or as excerpts of matches which come within their jurisdiction.”[1] The closed time can give protection to the event organizer pertaining to ticket sale.

Restriction of Exclusive Rights

Collective Marketing will lead to oligopoly agreement which can cause the monopoly practice. Collective marketing will restrict the competition particularly reduce the amount of suppliers in industry compare to the clubs itself do the marketing. In Indonesia oligopoly agreement is incompatible with Article 4 Competition Act 1999.

BLI usually invite the broadcasters to submit proposal pertaining to sport games. The question is whether transparency in the bidding process of sport programs by BLI. In fact, the exclusive holder is always the same broadcaster from time to time.

The exclusive rights should be restricted in order to give a chance to the other broadcasters pertinent to sport programs therefore there’s no monopoly of information.

For example in Europe, the Exclusive Rights not only comply with the internal soccer organization but also Television Without Frontiers Directive and the General Competition Law Framework.

Article 3 (a) TWF Directive regulates that each member of EU shall make the specific list including major sport events which can be viewed by public free television. The restriction is to maintain balance between the viewers and public interest to get information particularly the sport major events through free television. For example Italy, that stipulated sport major events as follow : Summer and Winter Olympic Games, the Football World Cup Final, the EUFA Championship final and the Giro d’Italia.

Moreover, the Exclusive Rights must comply the General Competition Law framework particularly Article 81 (1). The exemption of exclusive rights will be permitted as long as proportional and based on public interest.

The restriction of Exclusive Rights of EU based on the amount of games on one season, amount of the games or the geographic market. In France the exclusive rights agreement between France Football Association and the broadcaster can’t be exceed 5 years.

Therefore, the exclusive rights in Indonesia shall be regulated fairly in order maintain the competition on sport industry itself and also the broadcasting industry.

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[1] See http://www.uefa.com/UEFA/Regulations/Statues_Media_Article44html

RUSSIA: INVESTMENT IN INDONESIA (MOBILE OPERATORS)

Altimo, the telecommunication of Russia conglomerate Alfa Group is interested to invest in Indonesia particularly on mobile operators business. Pursuant to the newspaper, Vedomosti, Altimo will take part in a tender for the Excelcomindo stake in the coming weeks. Furthermore, Altimo also expressed its interest in Indosat, other Indonesia mobile operators.

SIUP MB (TRADING BUSINESS LICENSE FOR ALCOHOL BEVERAGE)

Do you want to open restaurant or bar in Indonesia? One of the requirement is obtaining SIUP Minuman Beralkohol (“Trading Business License fro Alcohol Beverage) from Departement Trade of Regional Office.

The required documents for application SIUP MB as follows:

(i)         Application Letter;

(ii)        Application Form;

(iii)      Copy of DoE and MoLHR;

(iv)       Copy of NPWP;

(v)        Copy of TDP;

(vi)       Copy of LoD;

(vii)     UUG Bar License;

(viii)    Bar License;

(ix)      SIUP MB of the Distributor/Sub Distributor Company;

(x)        Appointment Letter from the Distributor/Sub Distributor Company;

(xi)      List of Alcohol Beverages from the Distributor/Sub Distributor Company;

(xii)     Recommendation Letter issued by the Trade Service Office of Central Jakarta;

(xiii)   Recommendation Letter of Keramaian issued by the Police Office;

(xiv)    License for trading the alcohol beverages issued by the Police Department;

(xv)     Minutes of Site Visit issued by Trade Regional Office of DKI Jakarta;

(xvi)    Photograph of Director (3X4, 4 pieces);

(xvii)  Copy of identity card of Directors and Commissioners;

(xviii) Appointment Letter from Director; and

(xix)   PoA (for handling the processes).

 

The said license will be issued approximately 2 (two) months after submission of the application.

 

Abbreviation: LoD  = Letter of Domicile

PoA  = Power of Attorney

DoE  = Deed of Establishment

MoLHR= Minister of Law and Human Right

TDP= Company Registration Certificate

NPWP= Taxpayer Registration Number

 

 

HOW TO DRAFT THE LEGISLATIVE SENTENCE

As non-native English speaking law practitioners or law student, sometimes we have difficulties to draft the legistlative sentence in the contract.  

What is the legislative sentence? It is a sentence designed to confer rights or power to impose duties. It can be used for prohibitions.  If we want to draft the legislative sentence, I think we have to understand Coode’s model. Well, George Coode is an English barrister who developed a model legislative sentence which has been adopted by drafters in most Commonwealth countries and some American states. Coode’s model has also influenced the drafting of clauses in legal document particularly contract. 

Pursuant to Coode, most law is designed to change the position of a person or class of person by conferring a right, privilege, or power or by imposing duty. To carry out these functions effectively, a legislative sentence should contain three elements e.g.:

1. Legal Subject: a description of the person or class of person who is given to a power or duty or whose legal position is otherwise affected by the operation of law.
2. The legal action: a description of the legal action or legally significant impact that will result from the operation of the law.
3. The case: a description of the facts that must have occurred, the circumstances that must be present, and the conditions that must be met for the law to operate.

 For example: If the facts described in this subordinate clause have occurred, all persons are entitled to unemployed insurance. I think those elements mentioned by Coode can help us to prepare draft of legislative sentence because drafters have to think first, the  desired legal actions must be identified and categorized, second, once identified and analysed, the legal action shall be then matched with appropriate subjects, and finally, the case for each action shall be determined. 

Have fun writing legal drafts!!!!!  

TIME VS SOEHARTO CASE (DISCOURAGED MEDIA INDONESIA)

 Facts

The Indonesia Supreme Court has awarded Soeharto (the former President of Indonesia) US$ 106 million settlement from TIME Asia magazine, for guilty of defamation which is published a series of articles about corruption scandals involving his family in 1999.The verdict is superseded the verdict of the District Court of Central Jakarta and Jakarta High Court which is in favour of TIME.

Based on TIME article, the Soeharto family had over 30 odd years amassed a fortune of about US$70 billion which it stashed in various places around the world. Moreover, the Soeharto family transferred their money from Switzerland to Austria after 1997-1998 Asian economic crisis. 

A three judge panel of the Supreme Court lead by ARMY MAJOR GENERAL GERMAN HOEDIARTO, along with M.TAUFIK and BAHAUDDIN QOUDRY has awarded the verdict by using Penal Code as a legal basis.

 Issue

Whether the verdict on TIME vs Soeharto case is in line with Indonesian Constitution and Law No. 40 of 1999 regarding Press (September 23, 1999) (“Law 40/99”). 

Analysis 

Law 40/99 guarantees the Freedom of Press in Indonesia. Moreover, it also guarantees the press to conduct their activities to find, acquire, and publish the idea and information to public (Art. 4(3) Law 40/99). When press conducts their activities, press shall ensure Right of Reply and Right of Correction. Right of Reply means that an individual or a group of people has right to defend oneself against criticism (Art. 1(11) Law 40/99).  It offers a possibility to react to any information in media presenting inaccurate fact which affect the personal rights. Right of Correction means that an individual has right to correct the inaccurate information that is published by press, either about himself or other people (Art.1(12) Law 40/99). Therefore, all cases pertinent to the media activities shall be settled by the mechanism in Law 40/99. Law 40/99 is lex specialist. 

The libel and defamation that stipulated in Penal Code of Indonesia is not related to the media activities. However, those provisions (Chapter II Art. 130 – Art 139 Penal Code regarding Crimes against the Dignity of the President and Vice President) are related to the criminal activities.  

Excerpt of Penal Code 

Article 134

Deliberate insult against the President and Vice President shall be punished a maximum imprisonment of six years a maximum fine of three hundred rupiahs. 

Article 136 bis 

Deliberate insult in article 134 also includes the act described in article in Article 315, if this has been committed in the absence of the insulted person, either in public by acts or not in public but in the presence of more than four persons or only in presence of a third party who is present notwithstanding his own will and who takes offence of it, by acts as well as by words or in writing. 

Article 137

(1) Any person who disseminates, demonstrates openly or puts up in writing or portrait containing an insult against the President or Vice President with intent to make the contents public or enhance the publicity thereof, shall be punished by a maximum fine of three hundred Rupiahs.

(2)   If the offender commits the crime in his profession and during the commission of the crime two years have not yet elapsed since an earlier conviction on account of a similar crime has become final, he may be deprived of the exercise of said profession.  

TIME vs Soeharto case: The legal basis for this case shall be Law 40/99, not Penal Code because this case is related to the media activities. In the event that an individual want to challenge the inaccurate information in media,  the respective person can use his right e.g. Right of Reply and Right of Correction. By using Penal Code as legal basis to settle media dispute, the punishment can be very heavy either the compensation or imprisonment.  

Unfortunately, the Judges have used Penal Code as legal basis for Time vs Soeharto case. It means that there is no legal certainty in media Indonesia. Luckily, TIME is a big-worldwide media company so that they can afford to pay that penalty. The question is “How’s about the small media company in Indonesia?” This court’s ruling had discouraged the media in Indonesia and was setback to Freedom of Press.

What’s love?

 “I hate this, he does not call me” the girl says. “I miss him. Damn, I hate this situation”. The girl says. Do you think that she sounds frustrated?“

Hell ya! I don’t know what she wants, I have done everything that she wants” the guy says. He sounds frustrated too.

Have you ever been in that kind situation? You feel anxious about your relationship? You want to have steady relationship? Then, you start wishing upon the stars. One of my bestfriends called ‘khayalan babu’ (‘analogy to Cinderella situation’). Someone will take you to the best restaurant for candle light dinner or the prince charming will kidnap you and bring you around.   You know what, we always hope to become lucky in love. Yes lucky! People are starved for love, they watch movies about happy and unhappy love stories from Pretty Women, Enter and Breaking, Cinderella, Romeo Must Die etc. Moreover, we listen to mmm….trashy songs about love. (One of my bestfriends once made fun of me because I listened to This Love-Maroon Five. He said, that song is chessy and corny!) Yet hardly anyone thinks that there is anything that needs to be learned bout love. Media conglomerates portrays love as the chemical attraction between two people and nothing more. And yes… it might be affected to our lives without intentionally. The love stories that we see in TV or listen in the radio are usually about two people who, from different world (such as telenovela, the guy is rich and the girl is poor), manage to come together, then the story simply ends. We suppose to believe that they on to live happily ever after. But where, exactly, is it that they go?  They go to their own perfect worlds with their own perfect romances. Life inside themselves – in the perfect dream life. You know what? People sometimes like the clowns in the amusement parks who are funny, happy, colorful and larger than life on the outside, but on the inside their stifled and sweating and dying to get out. That is what real love is. I can’t blame people for wanting to stay inside. They prefer to see something colourful-jolly than face bloody-dark things. But love calls us out of our fantasies to face the reality of a world that is suffering and to do our part to make the world a better place for everyone.  

WHoah….What’s love? I can’t describe it with my own words because I am still learning what’s love is. Anyway, let me quoted Erich Fromm’s statement, my dear friends. He states that love is an art. It is about unity, not conformity; oneness, not sameness; openness, not isolation; togetherness, not separation; activity, not passivity “Love is an activity, not a passive affect, it is a ‘standing in, not a falling for. Well…the active character of love can be described by stating that love is primarily giving not receiving”.

 (Dedicated to my bestfriend CH and SS.) 

Marriage Dialogue

One of my collegues asked my friend, are you married? And she answered “Not yet”! He replied “ Don’t get married. I wish that I don’t get married. Besides, you’re too young.” The other guy said “Are you not happy with your wife?” He replied “if I can have other ones, why not? What do you think?.The other guy said “One is enough for now. Headache!”Then both were laughing. I just stopped my works for a while and glanced to them, then I got back to my works. From that short conversation, suddenly I remember Albert Einstein. He said that “Women marry men hoping they will change. Men marry women hoping they will not. So each is inevitably disappointed.” It also reminds me of Jean-Paul Sartre and Simon de Beauvoir. They kept the relationship as a union that remained a settled partnership in life. I think those moments might be frightened both Sartre and de Beauvoir. Frankly speaking, those moments also might be frightened by most of people, or maybe for most of us. For them, giving part of their freedom is a very expensive price that they shall pay to enter the ‘bar’ that they call ‘marriage institution’. Let me quote one of his statements regarding freedom, “freedom is a kind of damnation: as Sartre affirms: “We said that freedom is not free not to be free and that it is not free not to exist.” 

Michael Brecker

Michael Brecker (March 29, 1949 – January 13, 2007) is an American jazz saxophonist and composer. Acknowledged as “a quiet, gentle musician widely regarded as the most influential tenor saxophonist since John Coltrane, he won 13 Grammys as both performer and composer. (from wikipedia)