PROCEEDINGS The 2019 Law CMU International Conference “Law, Legality and Legitimacy in Asia”

PROCEEDINGS The 2019 Law CMU International Conference

“Law, Legality and Legitimacy in Asia” November 1st, 2019, Chiang Mai, THAILAND

Organized by Faculty of Law, Chiang Mai University

Proceedings The 2019 Law CMU International Conference “Law, Legality and Legitimacy in Asia” November 1st, 2019 Chiang Mai, THAILAND

Editor Usanee Aimsiranun Faculty of Law, Chiang Mai University

Organized by Faculty of Law, Chiang Mai University

All publication decisions are made by the editor on the basis of the reviews provided.

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review as permitted under the copyright act, no part may be reproduced by any process without the written permission of the publisher.

Responsibility for the content of these articles rests upon the authors and not the publisher. Data presented and conclusions developed by the authors are for information only and are intended for use without independent substantiating investigations on the part of the potential user.

Copyright © 2020 by Faculty of Law, Chiang Mai University Proceedings of The 2019 Law CMU International Conference “Law, Legality and Legitimacy in Asia” Editor: Usanee Aimsiranun ISBN:

978-616-398-450-0

Published by Faculty of Law, Chiang Mai University 239 Huay Kaew Road, Muang District, Chiang Mai 50200, Thailand Website: https://www.law.cmu.ac.th/site/ Email: lawcmuconference@gmail.com

Editorial Board Editor-in-Chief Asst.Prof.Dr.Usanee Aimsiranun, Faculty of Law, Chiang Mai University

Editorial Board Asst.Prof.Dr.Pornchai Wisuttisak, Faculty of Law, Chiang Mai University Assoc.Prof.Somchai Preechasinlapakun, Faculty of Law, Chiang Mai University Asst.Prof.Dr.Alexandre Chytov, Faculty of Law, Chiang Mai University Dr. Darunee Paisanpanichkul, Faculty of Law, Chiang Mai University Dr. Nuthamon Kongcharoen, Faculty of Law, Chiang Mai University Dr. Pedithep Youyuenyong, Faculty of Law, Chiang Mai University Dr. Ploykaew Porananond, Faculty of Law, Chiang Mai University

International Advisory Board Professor Dr. Zinatul Ashiqin Zainol, National University of Malaysia Asst.Prof.Dr. Nasarudin bin Abdul Rahman, International Islamic University Asst.Prof Dr. Nguyen Bah Binh, Hanoi Law University

Editorial Staff Mr.Thinakrit Nuwong, Faculty of Law, Chiang Mai University Ms.Waralak Naksen, Faculty of Law, Chiang Mai University Ms.Khirakorn Chatrattanapong, Faculty of Law, Chiang Mai University

Conference Schedule The 1st Law CMU International Conference 2019 Law, Legality and Legitimacy in Asia at Duangtawan Hotel, Chiang Mai, THAILAND

November 1st, 2019 09.00 – 09.30

Registration Opening Ceremony at Chiang Dao Room 1-2

09.30 – 09.45

Welcome Remark

by Assistant Professor Dr. Pornchai Wisuttisak Dean of Faculty of Law, Chiang Mai University

09.45 – 10.00

Opening Remark

by Clinical Professor Niwes Nantachit President of Chiang Mai University / Representative of Chiang Mai University Keynote Address at Chiang Dao Room 1-2

10.00 – 10.30

Law, Legality and Legitimacy in Asia: Pathway(s) to Human Rights?

by Mr. Vitit Muntarbhorn Professor Emeritus, Faculty of Law, Chulalongkorn University (former UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights.)

10.30 – 10.45

- Photo Session - Break Session 1

Panel 10.45 – 11.45

Alternative Dispute Resolution at Chiang Dao Room 1-2

Moderator: Dr. Khanuengnit Khaosaeng Negotiating in the Asian Century Bee Chen Goh Conceptualization and Management of New Regime of Alternative Dispute Resolution in India Sakshi Vijay Akshit Rajpal

11.45 – 13.00

Lunch @ Tawan Restaurant (2nd floor)

Session 2 Business & Trade

Environment

Information Technology

at Chiang Dao Room 1-2

at Chiang Dao Room 3

at Chiang Kham Room

---

---

----

Moderator: Assist. Prof.

Moderator: Dr. Nawaporn

Moderator: Assist. Prof.

Dr.Pornchai Wisuttisak

Saeneewong Na Ayudhaya

Dr.Tossapon Tassanakunlapan

Panel

Competition Law: Is Price-

Illegal Logging in Russia: a

The Influences of the Criminal

Fixing and Price-Setting

Case Study of a Community

Database Management System

Algorithms Similarly per se

Engagement

(CRDBMS) on the Effectiveness

Anti-Competitive Infringement

Alexandre Chitov

of Cambodian Courts of First

in Malaysia?

Instance’s Administration

Angayar Kanni Ramaiah

Meymey Kea

A Map to Competition Law in

Impact of Lower Sesan 2

Privacy under the Surveillance

ASEAN

(LS2) Hydropower Dam on

State: Legitimacy and Limits of

Andrea Gideon

Cambodian Women’s Rights

Citizen Data

in Kbal Romeas Chas and

S. Mercy Deborah

Kbal Romeas Thmey Villages, Stung Treng Province Tuy Sophorn

13.00

Of Shrimps, Consumers, and

The Challenge of Organic

The Need to Protect Freedom

their Impact on the Relations

Certification in ASEAN

of Expression Through a Human

between Asia and the

Nuthamon Kongcharoen

Rights Based Internet

–

European Union

Governance in Indonesia

15.00

Pallavi Kishore

A.A.A Nanda Saraswati

Holding of the Indonesian

Waters Transfer Laws and Its

Resilience Level of Digital

State-Owned Companies

Discrepancies, a Brief

Literacy to Deal with Hoax as

(BUMN) pursuant to the

Overview in Some ASEAN

National Security Threat

Government Regulation

Countries.

towards Political Year of 2019

Number 72/2016 and the

Rozlinda Mohamed Fadzil

in Indonesia

Indonesian Competition Law

Fines Fatimah

Number 5/1999 in the World Trade Organization (WTO) Rules Based-System Dian Parluhutan Regulation of Algorithm-

Environmental Insurance

Based Price Cartels in the

Yossi Niken Respati

Taxi-Online Business in Indonesia: Quo Vadis?

Udin Silalahi

15.00 15.15

Break

Session 3 Justice

Education

at Chiang Dao Room 3

at Chiang Kham Room

Panel

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---

Moderator:

Moderator:

Dr. Kitpatchara Somanawat

Mr. Chainarong Luengvilai

Post Conflict Local

A New Paradigm of Massive

Reconciliation and Everyday

Open Online Courses (MOOCs)

Peace in Cambodia: Unpacking

in Higher Education in Indonesia

the Silence of Khmer Rouge

: From Disruptive to Sustaining

Genocide Victims

Innovation

Soeung Bunly

Diah Pawestri Manharani Airin Liemanto

How the Absence of Specialized

The Development of Thai Laws

Court and Adequate Trial

and Legal Education: Political

Procedural Implementation

and Social Forces to Modernity

-

Impacts the Rights of the Child

Nattapong Suwan-in

17.15

and the Outcome of the Court’s

15.15

Verdicts: A Study of Cambodia’s District Court Mang Sohan The Dynamic of Anti-Thaksin-

Women Rights: “Role of Women

Regime Movements:

Entrepreneurs in Promoting

Constructing Legitimation

Corporate Social Responsibility

Through Sets of Language in

(CSR) in Cambodia”

‘PDRC Movement’.

Hong Sochea

Itthiphon Kotamee

17.30 – 18.00 18.00 – 20.00

Closing Remarks at Chiang Dao Room 1-2

by Assistant Professor Dr.Usanee Aimsiranun

Evening Reception (TBA)

CONTENT Page CONCEPTUALIZATION AND MANAGEMENT OF NEW REGIME OF

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ALTERNATIVE DISPUTE RESOLUTION IN INDIA Sakshi Vijay and Akshit Rajpal OF SHRIMPS, CONSUMERS, AND THEIR IMPACT ON THE RELATIONS

21

BETWEEN ASIA AND THE EUROPEAN UNION Pallavi Kishore JURIDICAL ANALYSIS RELATED TO HOAX AS A THREAT OF NATIONAL

48

SECURITY IN INDONESIA Fines Fatimah JURIDICAL ANALYSIS RELATED TO HOAX AS A THREAT OF NATIONAL

56

SECURITY IN INDONESIA Soeung Bunly A NEW PARADIGM OF REGULATION OF MASSIVE OPEN ONLINE

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COURSES (MOOCs) IN HIGHER EDUCATION IN INDONESIA: FROM DISRUPTIVE INNOVATION TO SUSTAINING INNOVATION Diah Pawestri Maharani and Airin Liemanto THE DEVELOPMENT OF THAI LAWS AND LEGAL EDUCATION: POLITICAL

84

AND SOCIAL FORCES TO MODERNITY Nattapong Suwan-in WOMEN RIGHTS: “ROLE OF WOMEN ENTREPRENEURS IN PROMOTING CORPORATE SOCIAL RESPONSIBLY IN CAMBODIA” Hong Sochea

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia CONCEPTUALIZATION AND MANAGEMENT OF NEW REGIME OF ALTERNATIVE DISPUTE RESOLUTION IN INDIA Sakshi Vijay and Akshit Rajpal1

I. Introduction The debate around ‘Alternative Dispute Resolution’ started in 1906 and originated in a speech delivered by Roscoe Pound, who at that time was thirty-six years old and a Professor of Law in Nebraska. At the time when law and court rooms were considered sacred and it was blasphemous to even constructively critique the judicial system, he asked a difficult question which as described by Randall T. Shepard, former Chief Judge of the Supreme Court, “caught the imagination of the legal profession and provoked decades of reform” 2 . His address was titled “The Causes of Popular Dissatisfaction with the Administration of Justice” 3 and is found relevant across borders and after decades of development, even today.

His speech questioned the sustainability and efficiency of the administration of justice through Courts in the United States of America and it was the first time that lawyers, judges and jurists were constrained to think of an alternate solution for the resolution of disputes. Just like wine, the questions became more potent with the passage of time and it became more pressing to find solutions for the same. The procedural issues in the system identified by Pound were relatively easier to fix, however his complaint about the “sporting theory of justice” 4 needed a paradigm shift in attitude on part of all stake holders in the system of administration of justice.

Pound propounded around century ago that the notion of litigation as a ‘game’ to be ‘won’ by lawyer-gladiators was infecting Americans’ views of the civil justice system. It is incredible to observe that the same stands true for India and other Asian countries even today where the treatment of litigation like a sport leaves the court system in low regard and tends to forget the needs of the parties themselves.

1

Sakshi Vijay is an Assistant Professor with the Jindal Global Law School, O.P. Jindal Global University.

Akshit Rajpal is a 4th Year BBA-L.L.B student at Jindal Global Law School, O.P. Jindal Global University.

Randall T. Shepard, ‘Introduction: The Hundred-Year Run of Roscoe Pound’, (2007) 82 IND. L.J. 1153.

Roscoe Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, (1906) 40 AM. L. REV. 729, 742.

4 Roscoe Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, (1906) 40 AM. L. REV. 729, 738.

2 3

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia It was in 1976 that another Conference was organized to take stock of the situation and compare it to the prophecy of Roscoe Pound, titled with the misnomer ‘Second Pound Conference’. It was actually the first time that the Americans acknowledged the address made by Roscoe Pound in 1906. Just like the first Pound Conference asked some difficult questions, the second one gave some complex answers.

The man with the solution was the keynote speaker Frank Sander, who had been on the Harvard Law School faculty since 1959. Sander laid out his vision for a courthouse of the future, which would essentially label disputes into different categories—some of which should be litigated, and others that should go through other processes, such as facilitation, mediation, or arbitration. 5 Sander expanded Pound’s initial criticisms of the civil litigation system as slow and archaic by offering a new concept of the system itself: instead of sending every civil dispute to a judge after an extensive discovery process and burdensome motion practice, he proposed a new alternative system that could work parallel to the litigation system. This notion of the “multi-door courthouse” 6 became a hallmark of the dispute resolution movement. This paper is based on the adoption of Frank Sander’s idea in modern day India- what has already been done? What remains? And how will it affect the current system of administration of justice.

Robert Kennedy had famously said, “Every generation inherits a world it never made; and, as it does so, it automatically becomes the trustee of that world for those who come after. In due course, each generation makes its own accounting to its children.” 7 Even though this was said in a social and a political context, it stands true for the process of administration of justice which is inherited, endured and cured by every generation and each generation has an equal responsibility to make it more efficient for the generation to come.

II. Administration of Justice in India in 2019: The Supreme Court of India has 58,669 cases pending as on 1st June 2019 whereas the 24 High Courts in India have a collective load of more than 4.3 million cases out of which 2.667 Frank E.A. Sander, ‘Varieties of Dispute Processing, Address Before the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’, (1976) 70 F.R.D. 79, 111.

6 A Dialogue Between Professors Frank Sander and Mariana Hernandez Crespo, ‘Exploring the Evolution of the Multi-Door Courthouse’, (2008) 5 U. ST. THOMAS L.J. 665, 670. Note that Multi-door courthouse was not a name given to the idea by Frank Sander himself, he commented that “On the cover, [the ABA] had a whole bunch of doors, and they called it the multi-door courthouse. I had given it a much more academic name, the ‘comprehensive justice center,’ but so often the label you give an idea depends a lot on the dissemination and the popularity of the idea. So, I am indebted to the ABA for having this catchy name—multi-door courthouse.”

7 Robert F Kennedy, ‘Keynote Address’ (at a Meeting of the University of South Carolina Chapter American Association of University Professors, Columbia, South Carolina. April 25, 1963) 5

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia million are less than five years old. 0.844 million cases are pending for more than 5 years but less than 10 years and then 0.835 million cases are those which are pending since more than 10 years ago. 8 The problem is not restricted to the volume of cases pending in India, but it is spiraled due to the duration for which they have been pending. The oldest case pending with the Calcutta High Court was filed in 1833 about the immovable property of Raja Deb and the family pleads that it does not have enough resources to even maintain the property as of today. 9 This may be an exceptional case, but even regular commercial cases take longer time for adjudication by Courts compared to their counterparts in more developed jurisdictions like UK, USA, Singapore, Australia, etc.

Typically, suits in India take significant time before a judgment is pronounced primarily due to various stages, which include, inter alia, framing of issues, submission of evidence, chief examination and cross-examination. In addition, the archaic procedural laws and frequent adjournments further contribute to the stretched timelines, though there are conscious efforts being made to change this situation. 10 In pursuit of a more time effective adjudication system, certain legislations have been recently introduced to expedite the process of resolution. For instance, the Insolvency and Bankruptcy Code 2016 (IBC) has been introduced to complete the insolvency process within 180 days (extendable to 270 days). 11 The Commercial Courts Act 2015 prescribes strict timelines for the conduct and disposal of commercial disputes in India. 12 Similar strict deadlines have been instituted in the frame of arbitration laws in India.

However, despite the efforts made by the Legislature, the effective result of such amendments have not been verified by the Judiciary. Meanwhile, the delays and overburdening of courts continue at its peak. The people to Judges ratio in India is such that there are 19 judges for every hundred thousand . 13 Therefore, it is not very difficult to guess that people in India are “Supreme Court of India” (Statistics | Supreme Court of India) <https://sci.gov.in/statistics> accessed October 15, 2019 9 Raaj N, “175 Years Later, West Bengal Case Goes on and on : India News - Times of India” (The Times of India) <https://timesofindia.indiatimes.com/india/175-years-later-West-Bengal-case-goes-on-andon/articleshow/3690564.cms> accessed October 15, 2019.

10 Shah K, Kapoor A and Adlakha K, “Complex Commercial Litigation in India” (LexologyMarch 26, 2019) <https://www.lexology.com/library/detail.aspx?g=4449b31a-ff8d-4dd8-a9bc-a9eadd092b24> accessed October 15, 2019.

11 The Insolvency and Bankruptcy Code, 2016.

12 The Commercial Courts Act, 2015.

13 Pti, “India Has 19 Judges per 10 Lakh People: Data” (@businesslineSeptember 24, 2018) <https://www.thehindubusinessline.com/news/india-has-19-judges-per-10-lakh-peopledata/article25030009.ece> accessed October 15, 2019.

8

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia weary of going to the Court and even international business community is suspicious of dispute resolution in the country.

The solution that the government (in the last decade) has been working on is the strengthening of Alternative Dispute Resolution methods, specially arbitration in the country.

Substantial efforts have been made to establish arbitration as a conclusive method of dispute resolution, but they have been slow at delivering positive affect due to psychological, physical and legal hindrances. Discontent against arbitral awards stems from its adjudicatory nature, where-as mediation or conciliation empowers the parties to decide on their own dispute.

However, there has been no substantial effort to establish mediations an effective Alternative Dispute Resolution mechanism in India.

In this paper it is suggested that in the extra-ordinary situation that India is facing today, it is not enough that we develop individual modes of Alternative Dispute Resolution but it is imperative that we develop a multi-door court house which will help us to direct the dispute to the most appropriate resolution system and then that system be integrated to meet international best practices.

III.

Alternative Dispute Resolution in India-Scope and Objective In India the alternative dispute resolution methods have been made inter-alia on the

following considerations, namely (a)

It enhances access to justice by giving an alternative to the civil justice system

beset by delays and cost overruns. (b)

It enhances party autonomy to protect its interests, and not merely rights.

(c)

Alternative Dispute Resolution methods ensure civic virtues by undermining the

adversarial nature of litigation and shall maximize welfare.

When Section 89 was first inserted in The Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) (through amendment of 1999 which came into effect in 2002) it was proposed that parties be made to resort to Alternative Dispute Resolution before resorting to litigation but such decision was to be made by the presiding Judge, instead of the parties involved.

Section 89 reads as follows: â&#x20AC;&#x153;(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia court may reformulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation (c) judicial settlement including settlement through Lok Adalat; or (d)mediation.

(2) Where a dispute had been referred(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.]â&#x20AC;? 14

It was presumed that the inclusion of this provision in the Civil Procedure Code in India will create an effective system and culture of Court attached Alternative Dispute Resolution in various parts of the country. However, on the contrary, it created more confusion than it cured.

The choice of words and the language of the provision was such that it required to be corrected or interpreted in a way that it would give effect to the object of the amendment.

Relief was provided by the Supreme Court when it pronounced the landmark judgment in the case of Afcons Infrastructure and Orsv/s Cherian Verkay Construction and Ors15 . The judgment described the requisite procedure that should be followed by Judges while applying section 89.

The provision when read with Order X Rule 1-A provided that the court can direct the parties to one of the five modes of Alternative Dispute Resolution and directs the court to formulate the terms of settlement. If read literally, this provision would put the cart before the

14 15

The Code of Civil Procedure, 1908.

(2010) (8) SCC 24.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia horse and require the Court to formulate terms of settlement, which should ideally be formulated by the parties since it is consensual dispute resolution.

The Court held therefore, that the only practical way of reading Section 89 and Order 10, Rule 1-A is that after the pleadings are complete and after seeking admission/denials wherever required, and before framing issues, the court will have recourse to section 89 of the Code. Such recourse requires the court to consider and record the nature of the dispute, inform the parties about the five options available and take note of their preferences and then refer them to one of the alternative dispute resolution processes.

It was clarified that if the reference is to conciliation/mediation/Lok Adalat, then drawing up the terms of the settlement or reformulating them is the job of the parties under the guidance of the conciliator or the mediator or the Lok Adalat, after going through the entire process of conciliation/ mediation. Thus, the terms of settlement drawn up by the court will be totally useless in any subsequent Alternative Dispute Resolution process. Another amendment suggested by the Court was to swap the words ‘judicial settlement’ and ‘mediation’ as given in sub-clause (c) and (d) of Section 89 Hence section 89 read with the interpretation provided in the above mentioned case provided enough power to Judges in Indian courts to refer cases to various agencies (court attached) for appropriate resolution of dispute. The statutory lacuna existed for want of enforcement where the parties wanted to resolve the disputes themselves without the directions of the Court The situation today is such that majority of the cases in India are settled by way of litigation, with the active involvement of the courts or tribunals. However, efforts are being made so that Alternative Dispute Resolution receives its rightful place especially in commercial disputes in India and it is no longer ‘Alternative’ as much as it is the ‘Appropriate’ method of dispute resolution.

Major reasons for the growing dependence on alternative modes of dispute resolution include, time efficiency, cost efficiency, party autonomy in resolution of dispute or specialized adjudicator for resolving disputes. Under different statutes, conciliatory dispute resolution methods like mediation are made compulsory to be exhausted before litigation commences, for example, the Commercial Courts Act, 2015 and the Consumer Protection Act 2016.

A. The following are the alternative methods of resolving disputes that are suggested in Section 89 of the CPC: I. Lok Adalats: (People's Court) is one of the indigenous and home grown methods of dispute resolution in India, it is a forum where cases pending in courts or at pre-litigation stage 6

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia are settled. Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987. Under this Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding. No appeal against such an award lies before any court of law but aggrieved party is free to initiate litigation by approaching the court of appropriate jurisdiction by filing a case by following the required procedure, in exercise of their right to litigate.

Through the year 2018 the cases settled by the Lok Adalats (other than the National Lok Adalat) was 1,357,963 cases and the National Lok Adalat settled 5,882,561 cases. Thus, the Lok Adalats in total managed to settle 7,240,524 cases through one year. 16 There is no court fee payable when a matter is settled in a Lok Adalat. If a matter pending in court is referred to the Lok Adalat and is settled subsequently, the court fee originally paid is also refunded back to the parties. The persons deciding the cases in the Lok Adalats are called the Members of the Lok Adalats, they have the role of statutory conciliators only and do not have any judicial role; therefore, they can only persuade the parties to come to a conclusion for settling the dispute outside the court in the Lok Adalat and shall not pressurize or coerce any of the parties to compromise or settle cases either directly or indirectly. The Members are encouraged and incentivized to help the parties come to a settlement but they have to walk on egg shells to ensure that they do not coerce a party. The members shall only assist the parties in an independent and impartial manner in their attempt to reach amicable settlement of their dispute. 17 .

II. Arbitration: The Arbitration & Conciliation Act, 1996 makes arbitration, domestic and

international, effective and efficient in India. The Act is based on the UNCITRAL Model Law and facilitates International Dispute Resolution in India. Under the said Act, an arbitral award can be challenged only on limited grounds and in the manner prescribed. India is also party to the New York Convention on The Recognition and Enforcement of Foreign Arbitral Awards, 1958.

The following are the different kinds of Arbitrations found in India: 1. Ad-hoc Arbitration – One in which there is no institution to administer the arbitration.

2. Institutional Arbitration – Usually administered by an arbitral institution.

3. Statutory Arbitration – Imposed on the parties by operation of law.

4. Foreign Arbitration – Proceedings are conducted in a place outside India.

Annual Report 2018” (National Legal Services AuthorityApril 24, 2019) <https://nalsa.gov.in/library/annual- reports/annual-report-2018> accessed October 15, 2019 17 “Lok Adalat” (National Legal Services Authority February 26, 2019) <https://nalsa.gov.in/lok-adalat> accessed October 15, 2019 16

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Recent amendments and developments have testified that India is focusing on development of Institutional arbitration and is rising towards being an arbitration hub with world class infrastructure and legal and statutory support.

III. Conciliation: Conciliation has been inserted in Part III of the Act and it has been adopted as one of the efficient means of settlement of disputes. The Act is drafted on the lines of the UNCITRAL Model Arbitration Law and the UNCITRAL Conciliation Rules. It is a nonbinding procedure in which a neutral conciliator assists the parties to a dispute in reaching a mutually agreed settlement. Section 61 of the Act reads that conciliation shall apply in disputes arising out of a legal relationship whether contractual or not, and to all proceedings relating thereto.

IV. Mediation: Courts in India can identify cases where an amicable settlement is possible, refer the disputes to Court attached mediation centers for resolution. The Commercial Courts Amendment Act of 2018 has provided great impetus to mediation. The amendment has inserted a new Chapter IIIA into the Act. It entails that where a suit does not contemplate urgent interim relief, the plaintiff has to undergo pre-institution mediation.

B. Latest Development in the Field of Alternative Dispute Resolution in India: I. The Singapore Convention-India signed United Nations Convention on International Settlement Agreements (UNISA) also known as Singapore Convention on Mediation So far 46 countries have signed this international treaty on settlement agreements.

It is particularly important for the growth of mediation in India and enhancing the ease of doing business in India particularly in the legal front. It will help to boost confidence of investors especially foreign investors investing in India. It will act as a positive signal to foreign investors about Indiaâ&#x20AC;&#x2122;s commitment for adhering to international practice on Alternative Dispute Resolution and external dispute resolution.

II. Amendment of 2019 to Arbitration and Conciliation Act- the Arbitration and Conciliation (Amendment) Bill, 2019 aims at making India an international arbitration hub.

The bill aims to establish an independent body called Arbitration Council of India (ACI) for promotion of arbitration, mediation, conciliation and other alternative dispute redressal mechanisms.

ACIâ&#x20AC;&#x2122;s functions would include framing policies for grading arbitral institutions and accrediting arbitrators, making policies for establishment, operation and maintenance of uniform professional standards for all alternative dispute redressal matters, and maintaining a depository of arbitral awards made in India and abroad.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Law Minister has said, while replying to a debate on the bill in the Indian Parliament that “India should not accept imperialism in the field of arbitration. The best would be when Indian arbitrators are sought globally. We want India to become a hub of international arbitration."

III. Commercial Courts Act and Consumer Protection Act- The Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018, has inserted section 12A to the Commercial Courts Act, 2015, contemplating pre-institution mediation and settlement, before the filing of any commercial disputes.

Specifically, Section 12A (1) the Commercial Courts Act, 2015 states that "a suit which does not contemplate any urgent relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with such manner and procedure as may be prescribed by rules made by the central government”. 18 The model contemplated by the ordinance is similar to the most successful opt-out model widely used in Italy in limited civil and commercial cases wherein litigants will not have direct access to the Italian courts if they cannot prove that they have attended an initial mediation meeting. Lithuania, Luxembourg, United Kingdom, Ireland also use this model for a certain category of disputes.

This mandatory mediation meeting is an opportunity for parties and their legal counsels to meet with a professional neutral mediator at a neutral place to learn about the process and decide whether they would like to give themselves the opportunity to collaboratively settle the dispute. If after this mandated initial session, the parties are amenable to try and settle their dispute through mediation, the process can start right away. If the parties, however, decide not to proceed with mediation, they are deemed to have fulfilled the requirements of the law.

Similarly, amendments to the Consumer Protection Act in India have ensured that customers who have complains get a rightful chance of mediation before they have to go through the adjudicatory method of dispute resolution.

C. Alternative Dispute Resolution and status quo: It is generally understood that notwithstanding the merits of the case every kind of disputes can be outsourced to Alternative Dispute Resolution. There is an element of public interest in retaining certain types of disputes in the justice system. There are disputes that are in nature of ‘in rem’ interests are involved and disputes that are criminal in nature. The Supreme

18

The Commercial Courts Act, 2015.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Court of India in the case of Afcons Infrastructure v Cherian Verkey19 gives an illustrative list of cases. However, it is submitted that it does not disclose any universal principle on the basis of which such exclusion is being made but a mere rule of thumb. For example, arbitration is barred in matrimonial disputes, but conciliation and mediation is often resorted to. Petty crimes are often referred to the Lok Adalat even when criminal matters are barred from Alternative Dispute Resolution processes.

The second difficulty lies in the selection of the proper Alternative Dispute Resolution process. Once again, the Supreme Court laid down a selection criterion in Afcons20 but the same was not based on any hard data. Indeed, the selection was based on “logistical” concerns and anecdotal understating of these processes.

The general answer to the selection problem is to rely on party choices. It is questionable whether party choice is an informed one. In any case that choice may not be a socially optimum choice. For example, a systematic choice of mediation in matrimonial matters may lead to nonoptimum enforcement of domestic violence legislation.

IV. Original Idea by Frank Sander: Roscoe Pound and Frank Sander even though separated by a generation may be called the of Adam and Eve of Alternative Dispute Resolution. Frank Sander’s interest in the Alternative Dispute Resolution field developed out of a sabbatical reflection in Sweden. In 1975 Frank was studying the legal rights of co-habiting (e.g. non-married couples). While sitting at the University of Stockholm, he was struck by the contrast between his labor arbitration experience where disputes were resolved quickly and inexpensively outside the courts versus family law divorce disputes in the U.S. where the involvement of lawyers and courts cost families huge sums, often made the situation more adversarial, and didn’t necessarily produce more stable life for the children.

Frank put thoughts (what he called “musings”) to paper contrasting the worlds of mediation and family justice centers used more in China or Sweden with litigation and traditional court adjudication used in the U.S. and sent his memo back home to some of his HLS colleagues.21

19

(2010) (8) SCC 24.

Ibid.

21 “Leading the Alternative Dispute Resolution (ALTERNATIVE DISPUTE RESOLUTION) Field” (Frank Sander) <http://franksander.com/leading-the-alternative-dispute-resolution-field/> accessed October 15, 2019 20

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia It is in his words that he says, “I was sitting around writing Christmas cards in December 1975 when I received a telegram from Chief Justice Warren Burger asking if I would be willing to come down and talk to him about giving a paper at the Pound Conference… next April on dispute settlement. I was totally unqualified to do it as a scholar but I went there and had a very interesting discussion with Burger and the net result was that I crash- educated myself and gave a paper called ‘Varieties of Dispute Processing’ at the Conference with over 200 judges, scholars and bar leaders in attendance. In the paper I went through different dispute processes and explored what they were best suited for and at the end came out with the notion of the multi-door courthouse (i.e., a courthouse where disputes would be screened at entry and referred to different processes or doors for their resolution).” 22 Sander’s addresses set the tone for the discussion, that Alternative Dispute Resolution could be a “promising remedy for the particular dissatisfaction that arose from the cost, delay, and inaccessibility of adjudication.” 23 The reasons he used to justify the system propounded by him are still relevant and is used by advocates of mediation and conciliation even today. Simply put, he proposed a specialization in the resolution of disputes, but unlike doctors where education and training decide the specialization, this specialization was based on characteristics of the dispute faced by the parties.

Sander divided the renaissance of the Multi-door court house system into the following three periods: i) Period of Great Experimentation: Let 1,000 Followers Bloom 1976-1986 ii) Sorting the Wheat from the Chaff: 1987-1997 iii) Institutionalization: Taking the Best of the Field and Working it into the Basic structure of our Dispute Resolution System 1998-2008 As we stand beyond 2008, the world of Alternative Dispute Resolution has not developed to the stage of ‘auto pilot’ but it will not be incorrect to say that countries like the United States of America have achieved institutionalization in many aspects of Alternative Dispute Resolution and countries like India are aiming towards institutionalization of Arbitration. 24

22

Ibid Dorothy J. Della Noce, ‘Mediation Theory and Policy: The Legacy of the Pound Conference’, (2002) 17 OHIO ST. J. ON DISP. RESOL. 545, 546.

24 The Arbitration and Conciliation (Amendment) Act, 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Frank Sander and his predictions may have expired but his legacy lives on and it was celebrated in the Global Pound Conference (GPC) World Series 2016-2017. 25 The series which ran throughout 2016-2017, represented the latest moment in which the field has engaged in intentional reflection. i) How well does our system of justice work? ii) Can human beings effectively, efficiently, and fairly resolve the conflicts that inevitably emerge among us? iii) Does society offer meaningful alternatives to courtroom litigation?

The GPC series engaged judges, lawyers, mediators, arbitrators, governments, students, and academics on six continents and in 31 countries around these questions. Its goal, not an immodest one, was “to create a conversation about what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts.” 26 The series had conducted a survey across continents to find answers to the above mentioned questions, the result of which is being published and analyzed in various other papers. However, we are yet to find a break-through of the magnitude of Roscoe Pound and Frank Sander.

V. The lessons from District of Columbia, USA 27 The concept of the Multi-door court house system was originated in April 1976 at a conference convened by Chief Justice Warren Burger that was the result of consistent problems faced by the justice system due to the influx of the number of pending cases in the courts. The first functional court was created as a part of District of Columbia Dispute Resolution Program.

The first proper door ‘was’ opened in the year 1985 by the D.C. Mediation Service for civil suits involving damages up to 2000 USD and due to the specificity of the claims that could have come to them, they managed to do much better than expected with close to 200 cases mediated each month. The second dispute resolution program was open and was called the Domestic Relations Mediation. Through various years of trying the system, professionals have learnt that Mediation as a technique could either perform well or fail. For cases such as small claims, mediation shall serve as the quickest form of justice. On the other hand, cases regarding

Deborah Masucci, Michael McIlwrath& Jeremy Lack, ‘The Global Pound Conference Series’, (2016) DISP. RESOL. MAG. 28.

26 “About the 2016-2017 Global Pound Conference” (International Mediation Institute) <https://www.imimediation.org/research/gpc/gpc-about/> accessed October 13, 2019 25

Gladys Kessler & Linda J. Finkelstein, ‘The Evolution of a Multi-Door Courthouse’ (1988), 37 Cath. U. L. Rev. 577.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia personal relationships etc. a proper process of mediation cannot take place due to the unequal parity in the bargaining power. Eventually, they realized the benefits of the Multi-door court house system, the initial funding of the same might be high, but having a strong and viable plan was much needed for a permanent future. A system like this requires qualified and skilled staff as well in various roles. Every staff member has to be well versed with the mediation process and if a certain staff member isn’t, the courthouse shall have training for the same.

For a mechanism like the Multi-Door courthouse system there needs to be an involvement of the judges who held leadership positions in the court which will help them coordinate the policy and procedure that is needed for the smooth functioning of a multi-door court house system. Through the changing course of the legal framework, it has been realized that the closest substitute to help the backlog of cases in higher courts is the process of Alternative Dispute Resolution with a multi-door courthouse that shall accommodate all kinds of cases, no matter big or small.

As discussed earlier, the number of cases that were pending in the Supreme and High Courts of India are immense and the legal system needs to be constantly developed to accommodate the same and be prepared for the ongoing influx of cases. By introducing the MultiDoor courthouse, not only will we be able to create more job opportunities, we will also be able to overcome the burden of pending cases. Owing to India’s population it needs to be understood the number of possible cases that could come up and the burden the pending cases have. As a nation, India should strive to provide a smooth legal system to its citizens and opening a MultiDoor courthouse is the only way that is possible in the foreseeable future.

Columbia has tried the same in multiple ways and has failed in multiple ways as well, but eventually, they depleted their level of backlogs and gave the Court Judges a relief, and justice to the people who were stuck because of the backlog of cases. It is only a matter of time before the same is properly infused with the Indian legal system VI. Application of Sander’s proposal in the Indian Alternative Dispute Resolution Ecosystem: As mentioned earlier, in 1976 Frank Sander developed a system of profiling of cases for resolution by the most suitable method of dispute resolution, including litigation. Based on the same ‘Comprehensive Justice Centre’, the following diversification of cases in India is proposed.

All efforts made towards Alternative Dispute Resolution, is to be channelized into a system which will filter cases suitable for resolution through appropriate method of Alternative Dispute Resolution and ensure that only cases which cannot be resolved through alternative 13

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia means be adjudicated in Court. This will include the institution of a multi-door courthouse where disputes will be profiled on the basis of certain attributes that they exhibit and will be bound to be resolved via the most suitable method of resolution. Example, a dispute for divorce be resolved via mediation whereas decriminalization of Homosexuality be heard by the constitutional Courts.

Illustration V(i): Demonstrates the breakdown of types of disputes for every 100 disputes in the Indian Courts and differentiates them stating which could be adjudicated upon using Alternative Dispute Resolution methods.

The object of the system will be to match dispute to the appropriate forum which will ensure the highest probability for resolution in the first instance.

This system would require inter-alia the following: A. Step one: The case profiling system will be data backed. At present behavioral data for Alternative Dispute Resolution systems is lacking. In Step One the endevour would be to develop behavioral data about Alternative Dispute Resolution systems.

B. Step two: The exponential development of the forums for resolution. This requires institution, efficient management and quality control of various forms of Alternative Dispute Resolution, example- Arbitral Institutions, Mediation and Conciliation Centers, Lok Adalats etc.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

Illustration V(ii):Demonstrates the mechanism of the Multi-Door courthouse and how the same shall be applicable in the Lower Courts in India.

If we critically analyze the status of development of various forms of Alternative Dispute Resolution in India, we will find that we have reached closer to the goal mentioned in step 2 but the system in step 1 has not been considered at all VII. The Multi-door courthouse of case Management for today’s India After the Pound Conference in 1976, a formal Pound Conference Follow-Up Task Force was charged with articulating and overseeing the development of specific recommendations. 28 This Task Force submitted its recommendations to the American Bar Association (hereinafter referred to as ABA) in a Report in the summer of 1976 that touched on topics as wide-ranging as the proliferation of administrative agencies to the role of the trial judge in issuing discovery sanctions. 29 It is pertinent for us to note the three main recommendations for establishing the new Alternative Dispute Resolution regime in India.

A. First, the Report advised that the ABA work with local courts and communities to create Neighborhood Justice Centers—essentially facilities that “would be designed to make available a variety of methods of processing disputes, including arbitration, mediation, referral to small claims courts as well as referral to courts of general jurisdiction.” Not surprisingly, such facilities sound a great deal like the “multi-door courthouse” proposed by Sander, which could effectively determine which method of conflict resolution would best fit a particular conflict.

In India, this may be established with the help of the Legal Aid Centers (established under the Legal Services Authorities Act, 1987. These centers work pro bono in every district in the

William H. Erickson, ‘The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century’ (1978), 76 F.R.D. 277, 279–80.

29 ‘American Bar Association Report of Pound Conference Follow-Up Task Force’ (1976), 74 F.R.D. 159, 161 28

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia country to ensure that anyone who is unsure about his or her legal rights, is educated about the same. The structure of Referral Officers30 may be included in the Legal Aid centres and it shall be made compulsory for parties to get counselled for the most appropriate method of dispute resolution, devised statutorily (for example under the Commercial Courts Act, if it is a commercial dispute where amount in dispute exceeds Rs. 3 lakhs and if the parties do not require any urgent interim relief, then it is mandatory for them to go through mediation) or on the basis of certain characteristics (for example matrimonial disputes are often better settled between the parties) and it shall be made mandatory for the parties to adhere to the recommendation of such referral officers.

As learnt from the experience in District of Columbia, in USA, it shall be crucial that the officers are appropriately trained for such a demanding role. The idea of Artificial Intelligence to help such referral officers may also be explored.

B. Second, the Report endorsed the expanded use of compulsory arbitration of certain disputes where the amount in controversy was relatively low. The Task Force favorably cited programs where such disputes were decided by three experienced attorneys, typically where the amount in controversy was below $10,000 and no equitable relief was sought.

This suggestion may be unrealistic in today’s world, since it has been accepted globally that parties cannot be made to arbitrate a dispute unless they have unequivocally agreed to do so themselves.

However, in the Indian context such decision-making power, for cases with lower amount in dispute and no substantial question of law involved, for example- default in payment of electricity charges, Lok Adalats 31 have been found to be the appropriate forum for adjudication.

C. Third, the Report suggested that federal, state and local courts should not be used for non- adversarial proceedings. The use of courts, the Task Force argued, “should be reserved for the resolution of controversies and the vindication of rights.” Courts need not be used for nonadversarial legal matters, such as “uncontested probate, uncontested divorce, incorporating membership corporations, approving changes of name and, in some cases, making appointments to semi-public offices.”

30

An officer of the Court who will be the first point of contact when a party approaches the Court, and shall be in the position to counsel the parties as to which method of dispute resolution shall they opt for .

31 “Lok Adalat” (National Legal Services Authority February 26, 2019) <https://nalsa.gov.in/lok-adalat> accessed October 15, 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Such administrative functions in India have already been assigned to the office of the District Magistrates and other non-judicial authorities. 32 This rule is, however, important in principle as it provides for a separation of duties for the Court and administrative authorities.

Apart from the points mentioned above, the following may be pertinent to explore when we are aiming to develop a Multi-Door courthouse system in India: A. Working of section 89 of the Civil Procedure Code- Section 89 would become redundant in a way that instead of the Judge in the Civil Court directing the parties to try a specific mode of dispute resolution, it will be the Referral Officers who will assume that role. The list of methods of Alternative Dispute Resolution as given under the provision will also be expanded to include new methods like expert evaluation and ombudsman.

B. Development and training of personnel in different fields- This is probably the most important aspect of development of the system and it can hardly be overemphasized. Training of the personnel will be required at various levels including: 1. Referral officers 2. Administrative staff of the Referral office 3. Mediators and Conciliators 4. Arbitrators 5.Tribunal Secretaries 6. Institutional staff of Mediation and Arbitration Centres.

The training of the personnel will determine the success or failure of the system.

C. Accreditation of Mediators/Conciliators and Arbitrators- Apart from training, it is equally important that the Presiding officers (even if they have no role in adjudication) be accredited for quality control. The accreditation must be from a centralized (preferably Government) body and uniformity should be maintained across the country.

Similarly, Arbitrators, most of whom are currently retired Judges will have to be home grown. The profession will have to be developed in a way that lawyers and other Industry experts practice as arbitrators full time. The profession of arbitrators just like Chartered Accountants will have to be self-regulated centrally.

D. Exploring the use of Artificial Intelligence and Data Analysis- Data analysis should be used to profile cases and to predict what method of dispute resolution is best suited for what kind of cases. For example, if it is established through data analysis that ninety percent of

32

Example, getting a legal heir certificate is not from the Court but the local Registrar of the State District Office.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia consumer disputes reach a mediated settlement if the parties are mandated to attempt mediation before litigation whereas Ombudsman only resolve forty percent of disputes that they hear, then it can be concluded that strictly for consumer disputes, mediation has a better success rate than ombudsmen.

Artificial intelligence can also be used to extract relevant information from the parties so that their dispute can be appropriately profiled.

E. Evolution of statutory mandates- The development of statutory provisions for mandating Alternative Dispute Resolution has already begun in India. Disputes regarding consumer complaints, commercial issues and even IBC have to be attempted to be resolved by mediation first but the statutory lacuna is evident in the fact that there is still no law which governs how mediations have to be conducted in India. Hence there is no law to enforce confidentiality in mediation or even to enforce the settlement agreement arising out of the mediation.

As much as statutory mandates will help disputants to attempt Alternative Dispute Resolution but it will only prosper if the quality of the process is maintained well and if we can curate a culture of confidence and trust around Alternative Dispute Resolution.

F. Broadening of legal education- As quoted by Abraham Lincoln “The philosophy of the school room in one generation will be the philosophy of government in the next.” Therefore, it is pertinent that Alternative Dispute Resolution be given its due place in Law schools and Universities in India. It is in law schools that young lawyers are taught that all glory is confined to ‘winning’ a particular case or an argument and that needs to be changed. Students who are lawyers of tomorrow should be made to understand that disputes are also an opportunity of value creation.

If we are successful in creating this culture in classrooms, we can look forward to the same spreading in the legal fraternity and other industries soon.

G. Presence of Ombudsman for Industries – This is a culture of the west and has often proved to be a good filter for disputes to be settled at the industry level itself. An ombudsman is an independent person attached to an industry, for example- the aviation industry in Europe will have an ombudsman who will be the first point of contact for the customer for any dispute between the customer and the industry. The ombudsman will help the complainant (customer) to know the provisions of the contract, his/her rights under it and the options for redressal. It is often seen that such legal aid helps in resolving certain disputes at the ombudsman level itself.

It is suggested that a similar system of industry wise ombudsman may be established in certain industries in India where complains are frequent. For example- online shopping websites.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia H. Industry support for Alternative Dispute Resolution-It is important for businesses to understand the benefit of using Alternative Dispute Resolution methods for internal and external dispute resolution. If they are educated about the procedure and the benefits of Alternative Dispute Resolution, then it will be easier to solicit support from them. The proof is in the pudding itself for commercial parties to see the cost and time efficiency of such alternate processes.

I. Expansion of awareness- All other efforts will remain ineffective unless there is general awareness created about the use, relevance and benefits of Alternative Dispute Resolution in India. There have been piecemeal efforts made by court attached mediation centers and Lok Adalats, but such efforts have to be integrated and reinforced at a nation-wide level.

J. Alternative Dispute Resolution Bar in India- Just like it is important to develop a bench dedicated full time to arbitration, it is also imperative that we have a distinct group of lawyers in every court in each part of the country who are specialized and dedicated in working in the field of Alternative Dispute Resolution. This will be a contrast from the situation today where lawyers only do arbitration on weekends when they are free from regular court practice.

VIII. Conclusion Voltaire had said â&#x20AC;&#x153;I was never ruined but twice: once when I lost a lawsuit, and once when I won one.â&#x20AC;? This is very true for litigants in India today as it is exhausting to go to court on frequent dates and carry the burden of hate that is complementary with any adversarial system of resolution of disputes.

Even after a party wins a dispute, it is only the end of the battle and the war still stands in the form of execution of the favorable decree. India with a population of 1.25 billion which is only projected to increase in the foreseeable future, has to pay a price for its demographics. Even though the people here are discouraged to go to Courts unless they have to, there are far too many people who have to go to Courts for interim relief or even for execution of orders in their favor (if received through Alternative Dispute Resolution).

As the country and its people develop, there will be more and more people buying cars, property and shares. There will be a simultaneous growth in business, commerce and trade and it will all lead to increase in disputes. It is hence inevitable to avoid disputes or even growth in disputes, what can be done is that we can foresee the growth in disputes and prepare for them to be appropriately resolved.

The Pound Conference is a suitable way to revisit the discussion and debate over the latest development around Alternative Dispute Resolution. It also helps to take stock of how much are the stockholders of disputes satisfied with resolution of the same. It is still a distant 19

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia dream but a possibility that India can be displaying its multi-door court house in the next Global Pound Conference fifty years from now!

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

OF SHRIMPS, CONSUMERS, AND THEIR IMPACT ON THE RELATIONS BETWEEN ASIA AND THE EUROPEAN UNION Pallavi Kishore

ABSTRACT This article examines the functioning of the European Union’s (EU’s) consumer protection law in an incident in which the EU banned Asian shrimps in order to protect its consumers and aims to answer the following questions 1.Are the EU’s actions in compliance with its own law and the law of the World Trade Organization (WTO)?

2.What is the impact of these actions on international trade and on the EU’s trading partners especially if they are developing countries?

The most important consequence of this incident is its restrictive impact on international trade and/or the use of consumer protection as a tool for protectionism. In this particular incident, it does appear that the EU’s actions could have violated WTO law had the Asian developing countries brought a case against the EU. The article will conclude by examining the impact of the EU’s actions on its relations with Asia.

Keywords: Antibiotics, consumer protection, protectionism

INTRODUCTION Relations between Europe and Asia have been framed in the Asia-Europe Meeting (ASEM) process in which a summit is held every two years. Twelve summits have been held from 1996 to 2018.The first ASEM summit was held in Bangkok in 1996 and the twelfth ASEM summit was held in Brussels in 2018. The main aim of the summits is to promote political, economic, and cultural exchange. Europe’s trade relations with Asia are fairly significant. Asia is a crucial partner for the European Union (EU) as the EU’s total trade in goods with Asia is worth €1.4 trillion.1

Jean-Luc Demarty, ‘EU-Asia Trade – The Bright Future Ahead’ (Friends of Europe, 29 May 2018) <www.friendsofeurope.org/publication/eu-asia-trade-bright-future-ahead> accessed 13 May 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The EU has separate agreements with many Asian countries as it is keen to develop its relations with them.2 The European Commission also came out with a communication entitled “Towards a New Asia Strategy” in 1994. 3 But the rapidly evolving global environment compelled it to update its communication and it came out with another communication called “Europe and Asia: A Strategic Framework for Enhanced Partnerships” in 2001. It was based on a practical and in depth analysis of its relations with the various Asian countries and aimed to strengthen the EU’s overall presence in Asia by building a coherent and extensive partnership between the two.4 The EU has proposed stronger bilateral commercial relations with countries which make an effort to open their markets to foreign investment leading to a climate conducive to business and continued interaction. It also emphasises the importance of transparency and accountability in the functioning of regulatory bodies in these countries. It is also desirous of promoting private sector participation in its relations with Asia through various economic actors in the two regions.

Paradigms have been defined in financial and economic sectors. The EU wants to deepen its dialogue with Asia on liberalisation of trade and investment and encourage reforms which address commercial concerns of both sides. It also intends to help in the achievement of social goals on the agenda of Asian countries. It is highly concerned about environmental problems and has called for joint efforts to resolve them.

The EU also wants to have better relations with members of the Association of SouthEast Asian Nations (ASEAN). The EU is ASEAN’s second largest trading partner and the ASEAN is EU’s third largest trading partner.5 In Asia, the one country that commands attention is China. It has made tremendous progress in international trade. The relationship between the EU and China is political as well as economic. The growing participation of the Chinese economy in international trade led to enhanced cooperation between China and the EU. Fully aware of the herculean influence that China exerts in every field, Europe tilted its priorities towards China. It, therefore, published a

Jean-Luc Demarty, ‘EU-Asia Trade – The Bright Future Ahead’ (Friends of Europe, 29 May 2018) <www.friendsofeurope.org/publication/eu-asia-trade-bright-future-ahead> accessed 13 May 2019.

3 Commission, ‘Towards a New Asia Strategy’ (Communication) COM(94) 314 final.

4 Commission, ‘Europe and Asia: A Strategic Framework for Enhanced Partnerships’ (Communication) COM(2001) 469 final. According to this communication, the EU would encourage peace and security in the Asian region; contribute to the maintenance of democracy and the protection of human rights; help in the eradication of poverty; reinforce EU’s imports and exports with the region; aid Asian countries in dealing with challenges thrown by globalisation; deal with difficult environmental issues; and strengthen the awareness of Asia in Europe. See Summary on p. 3 of the communication.

5 Association of South East Asian Nations (ASEAN)’ (European Commission) <http://ec.europa.eu/trade/policy/countries-and- regions/regions/asean/> accessed 13 May 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia communication entitled “A Long-Term Policy for China-Europe Relations” in 1995 outlining various fields of cooperation between the two. 6 In an increasingly interdependent world, competition is getting tougher. The EU, because of its belief in liberalisation of trade, supported China’s integration in the world economy by its accession to the World Trade Organization (WTO).

This clearly shows that the EU is keen to safeguard the interests of developing countries.

But is this all there is to this policy? How can one explain the EU’s ban on shrimps imported from Asian countries despite its encouraging policies towards them? In the WTO, there have been many cases relating to shrimps for various reasons such as protection of the environment and anti-dumping measures. All these cases pitted developing countries, mainly Asian, against the United States (US). Most cases have been decided since few did not proceed beyond the stage of consultations.

This article examines another instance involving a ban on the imports of shrimps.

However, this instance is different because the ban was imposed by the EU for consumer protection and the case did not find its way to the WTO. The only similarity with the previous cases is that a powerful WTO Member imposed the ban on imports coming from Asian developing countries.

The article examines the ban imposed by the EU in 2002 on the imports of shrimps from Asian countries in light of its relations with Asia. Interestingly, such activities including bans and/or inspections have continued.7 However, no case has been filed by the aggrieved countries in the WTO despite the important repercussions of the ban for EU-Asia relations. Therefore, this article evaluates the ban in light of the EU’s consumer protection laws and cases as well as in light of landmark WTO cases decided at the time of the ban to determine if it would withstand a challenge in the WTO. As much as the article undertakes this evaluation from different dimensions in order to provide an objective appraisal of the issues involved, its approach is titled in favour of the Asian developing exporting countries.

Even though the entities representing European integration have undergone change from European Community (EC) to EU, its consumer protection laws have remained the same.

Therefore, this article does not take these changes into account. 8 It mainly focuses on the

Commission, ‘A Long-Term Policy for China-Europe Relations’ (Communication) COM(95) 279 final.

Sri Lakshmi Muttevi and Aditya Pavan, ‘EU turns down antibiotics-laced shrimp shipment’ (The New Indian Express, 25 October 2017) <www.newindianexpress.com/states/andhra-pradesh/2017/oct/25/eu-turns-downantibiotics-laced-shrimp-shipment-1682162.html> accessed 13 May 2019.

8 In this article, the term European Union or abbreviation EU will be used except when referring to any specific law pertaining to the European Community or EC. 6 7

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia consumer protection laws in force in the EU in 2002 (irrespective of whether or not they are in force at present) since that is the (earliest) ban it examines. That was the first time the issue of antibiotics in imported shrimps made headlines in Europe and subsequently, in other developed countries as well.9 Section I of the article discusses the facts of the case. Section II analyses the validity of the EU’s ban in view of its legislation and cases. Section III analyses it in view of some important WTO cases. The Conclusion discusses the impact of this ban on the EU’s relations with Asia.

I. THE FACTS OF THE SHRIMPS EPISODE In January 2002, the EU found traces of Chloramphenicol, an antibiotic, in imports of shrimps, rabbit meat, poultry meat, honey, molluscs, crustaceans, prawns, and pet food from China.10 Chloramphenicol is used in humans and animals to treat various infections.11 However, it can cause a type of bone-marrow depression (aplastic anaemia), usually irreversible and fatal, in humans.12 Its use in food-producing animals is banned in the EU.13 The US Food and Drug Administration (FDA) allowed 5 parts per billion (ppb) of Chloramphenicol whereas the EU was testing at a level of 0.1 to 0.3 ppb.14 On 25 January 2002, the EU imposed a ban on Chinese imports after its Standing Veterinary Committee reported Chloramphenicol in the Chinese imports and voted in favour of their ban.15 The report was based on the findings of an EU mission to China in November 2001.16 A spokesman for David Byrne, the EU Commissioner for Health and Consumer Protection, said that “China’s food control [could not] be trusted.17” Shi Guangsheng, China's

‘Suspicious Shrimp’ (Food and Water Europe, 4 November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 13 May 2019.

10 ‘China, EU in Brussels Agree to Study Food Ban’(China Daily,1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019.

11 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907, p.

3.

12 ‘Suspicious Shrimp’ (Food and Water Europe, 4 November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 14 May 2019.

13 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907, p. 3.

14 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358.

15 ‘China, EU in Brussels Agree to Study Food Ban’(China Daily,1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019; 16 ‘China, EU in Brussels Agree to Study Food Ban’ (China Daily, 1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019.

17 Luise Hemmer Pihl, ‘Chinese foods to be banned by EU’ (EU Observer, 28 January 2002) <https://euobserver.com/news/4949> accessed 10 May 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Minister of Foreign Trade and Economic Cooperation, however, pointed out that the EU’s report was inaccurate and drafted without consulting the Chinese authorities.18 In March 2002, tests revealed the presence of another antibiotic, Nitrofuran, in shrimps imported from Thailand.19 Earlier, the shrimps from other countries such as China, Indonesia, India, Vietnam, and Myanmar had also tested positive for Nitrofuran. 20 Therefore, the EU imposed 100% testing on the imports of shrimps. The use of Nitrofurans in food-producing animals is no longer allowed in the EU because of a possible risk of cancer in humans.21 Once this problem came to the fore, various Asian shrimp exporters tried to resolve it immediately.22 The Thai government’s attitude was very cooperative. It immediately revised its existing legislations and regulations including those for the import of the antibiotic into Thailand.23 In this respect, Council Directive 70/524/EEC of 23 November 1970 concerning additives in feeding- stuffs24 lays down that antibiotics “must not be used in feeding-stuffs for the prime purpose of diagnosing, treating or preventing disease” (preamble) and “they must not endanger animal or human health” (preamble). The Resolution on antibiotics in animal feed25 states that “there are concerns about the possible consequences of widespread use of antibiotics in animal feed production in terms of animal and human health, and the medical implications thereof” (recital A).

II. ANALYSIS OF THE LEGALITY OF THE EU’S BAN IN LIGHT OF EU LEGISLATION AND CASES Consumers in the EU are very well-protected because their interests are safeguarded at the national and European level at the same time. The EU institutions have come out with a vast array of laws which aim for a high level of protection.

‘China, EU in Brussels Agree to Study Food Ban’ (China Daily,1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019.

19 Sujittra Phongvivat, ‘Nitrofurans Case Study: Thailand's experience’ (Food and Agriculture Organization) <www.fao.org/3/y5723e0u.htm> accessed 14 May 2019.

20 ‘Suspicious Shrimp’ (Food and Water Europe, 4November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 14 May 2019.

21 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907, p.

82; EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2015. Scientific Opinion on nitrofurans and their metabolites in food. EFSA Journal 2015;13(6):4140, 217 pp. doi:10.2903/j.efsa.2015.4140, p. 2.

22 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358-359.

23 Sujittra Phongvivat, ‘Nitrofurans Case Study: Thailand's experience’ (Food and Agriculture Organization) <www.fao.org/3/y5723e0u.htm> accessed 14 May 2019.

24 [1970] OJ L270/1.

25 [1998] OJ C167/306.

18

25

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia In this respect, the Treaty establishing the European Community26 in article 3(1)(t) states that “the activities of the Community shall include … a contribution to the strengthening of consumer protection.” It is one of the prime goals of the EC as it is stated in the first part of the treaty and is reinforced in various articles in its text. Articles 28 and 29 prohibit quantitative restrictions between Member States (MS) but article 30 allows those which can be justified on the ground of protection of health and life of humans. Article 95(3) explains that “[t]he Commission, in its proposals … concerning health, safety, … and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts.” Further, article 152(1) enjoins the EC to take care of human health. It reads, “[a] high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities. Community action, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to human health.” The scope of this article is very wide and includes prevention of risk to consumers’ health. In this context, article 153(1) states that “[i]n order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers.” Article 153(2) stipulates that “[c]onsumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.” In light of these provisions, it is amply clear that the EU will not let its consumers be imperilled in any way.

Apart from the treaty, there are numerous directives, strategies, resolutions, regulations, communications, recommendations, and opinions on the subject.

Most of the consumer legislation was a result of the shrimps crisis and contains provisions for informing consumers about the dangers of products. The consumers can decide for themselves whether or not they want to buy a product if they are informed that it contains antibiotics. Food safety agencies inform consumers in case of articles such as peanuts; they could do the same for shrimps. To do otherwise would mean the EU is taking decisions for its consumers. Despite its concern for its consumers, the EU does not give them a chance to participate in matters which concern them directly. Moreover, it is debateable if the procedure mentioned in the EU legislation was followed while imposing the ban. Also, the action of the EU seems to be in conflict with various provisions of EU law. Therefore, it would be in order

26

Treaty establishing the European Community (Nice consolidated version) [2002] OJ C325/33 [1997] OJ C340/173.

26

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia to evaluate the ban under the relevant laws and cases.

Council Directive 89/108/EEC of 21 December 1988 on the approximation of the laws of the Member States relating to quick-frozen foodstuffs for human consumption 27 mentions adopting rules for the labelling of quick-frozen foodstuffs as it will facilitate trade (preamble).

Thus, the EU could have adopted rules for labelling the shrimps so as to inform its consumers and this would have facilitated trade as well.

Article 3(2) of Council Directive 92/59/EEC of 29 June 1992 on general product safety28 states that “producers shall … provide consumers with the relevant information to enable them to assess the risks inherent in a product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings, and to take precautions against those risks.” Producer includes importer as per article 2(d); therefore, the EU could have required the importers to provide information to the consumers on the risks associated with shrimps.

Article 6(1) reads, “Member States shall have the necessary powers … to adopt appropriate measures with a view … to … (d) subjecting product marketing to prior conditions designed to ensure product safety and requiring that suitable warnings be affixed regarding the risks which the product may present; (e) making arrangements to ensure that persons who might be exposed to a risk from a product are informed in good time and in a suitable manner of the said risk by, inter alia, the publication of special warnings.” Neither of these steps was undertaken.

According to article 4(2), if neither Community nor national rules exist in this sphere, safety is assessed with reference to codes of good practice in respect of health and safety and to the safety that consumers may reasonably expect. With respect to the ban on the imports of shrimps, the question is what was the reasonable expectation of the EU consumers regarding safety? Did they expect shrimps to be banned? The behaviour of the consumers in continuing to consume shrimps did not display any such expectation.

Article 2(b) states that “[t]he feasibility of obtaining higher levels of safety or the availability of other products presenting a lesser degree of risk shall not constitute grounds for considering a product to be 'unsafe' or 'dangerous'.” This means that shrimps with and without antibiotics cannot be compared to declare the former unsafe.

Article 14(1) paragraph 2 states that “[t]he parties concerned shall, whenever feasible, be given an opportunity to submit their views before the adoption of the measure. If this has not

27 28

[1989] OJ L40/34.

[1992] OJ L228/24.

27

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia been done in advance because of the urgency of the measures to be taken, such opportunity shall be given in due course after the measure has been implemented.” The fact that Asian exporters and European importers were not given the opportunity to justify their situation means that it was not feasible. In such a case, they should have been given this opportunity after the imposition of the ban.

Paragraph 2 of the Annex to the Directive states that products involving possible long-term risks are excluded from the scope of this directive since its article 8 relates to products posing immediate threats to consumers. Cancer and/or aplastic anaemia from contaminated shrimps were not immediate threats; rather their risk was absent.29 So shrimps were excluded from the scope of this directive. Paragraph 3 of the Annex requires the MS to seek the point of view of the producer or distributor in case of a serious problem because their opinion may help in resolving the issue without much disruption in the market and at the same time protecting the consumers. Even if the contaminated shrimps posed an immediate threat and were, thus, included within the scope of this directive, the procedure mentioned in this paragraph was not followed.

Council Directive 96/22/EC of 29 April 1996 concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of ß-agonists, and repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC30 states that “it is necessary to ensure that all consumers are able to acquire meat and foodstuffs … and that those products correspond as closely as possible to their concerns and expectations” (recital 8). But what were the expectations of consumers in the case of shrimps? Most consumers did not know about the antibiotics in the shrimps until the EU banned them and even after that, people continued to buy shrimp which was already on the market. Moreover, it is obvious that the shrimp on the market would not last long after the ban so how would it be ensured that consumers continue to acquire it?

Council Directive 96/51/EC of 23 July 1996 amending Directive 70/524/EEC concerning additives in feedingstuffs31 states that “the use of antibiotics … should not be authorized by any mode of administration other than incorporation in feedingstuffs” (recital 20). The ban on shrimp imports comes as a surprise after reading this provision.

Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001

JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209.

30 [1996] OJ L125/3.

31 [1996] OJ L235/39.

29

28

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia on general product safety32 states that “[i]n the absence of specific regulations and when the European standards established under mandates set by the Commission are not available or recourse is not made to such standards, the safety of products should be assessed taking into account … the safety which consumers may reasonably expect” (recital 16). Irrespective of the presence or absence of regulations and/or standards, the question is what were the expectations of the consumers? They were buying the shrimps whether or not they knew about the antibiotic residues in them. The question then is whether the EU should be deciding for its consumers the safety that they expect of a particular product.

Article 3(3) states that the safety of the product shall be judged in light of the following factors – “(e) the state of the art and technology; (f) reasonable consumer expectations concerning safety.” These guidelines were not followed. Firstly, Asian exporters do not have the same infrastructure and technology as Europe. This means that the sophisticated technology in Europe may allow detection of very low levels of Chloramphenicol in shrimps classified as free of this antibiotic by the exporting country due to the use of not so-advanced technology unable to detect very low levels of this antibiotic.33 Secondly, European consumers were not given a chance to express their views so it is not possible to know of their expectations.

Article 8(1)(b)(i) states that a MS is entitled to require that the risk posed by a product be mentioned on the product itself in clear and simple words in the language of the MS in which it is being sold. But the EU banned the imports of shrimps before any MS could take this step.

Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety34 came into force after antibiotics were discovered in shrimps. It states that the EC has chosen a high level of health protection which it applies without discrimination whether food or feed is traded internally or internationally (recital 8). The EU may have chosen a high level of health protection but it does not apply it without discrimination since it was exporting contaminated food to Asian countries.35 The regulation recognises the fact that the exercise of the precautionary principle leads to restriction of trade (recital 20). Therefore, article 7(2) requires the adoption of precautionary measures that are proportionate and not more restrictive of trade than required for 32

[2002] OJ L11/4.

JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209.

34 [2002] OJ L31/1.

35 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world-market> accessed 14 May 2019.

33

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia the protection of public health. Given that the EU was not willing to accept even the slightest trace of antibiotics in shrimps, it could argue that its ban was proportionate to this requirement and not more trade restrictive than necessary. But the real question is whether it is proportionate to require zero antibiotics in shrimps when the risk is absent? The ban on shrimp imports was a swift and perhaps panic-stricken exercise of the precautionary principle on the EU’s part which led to a complete restriction of shrimp trade between the EU and Asia.

It also aims to boost consumers’ and international trading partners’ confidence in food policy by informing them when there are reasonable grounds to believe that a product presents a risk (recital 22). Neither consumers nor international trading partners were informed or consulted before imposing the ban. This opaque functioning of the European authorities will not increase the public’s trust in them.

The regulation explicitly states that the safety of consumers within the EC and outside is very important, that the EC contributes to the development of international food law standards, and that it supports free trade without discrimination following fair and ethical trading practices (recital 23). The EU’s ban on Asian shrimps can be examined in light of each of these statements. Firstly, it is clear that the consumers outside the EU have no importance for it because the EU is a regional grouping and also because it was exporting contaminated food to Asia.36 Secondly, it is not clear how imposition of a unilateral ban will lead to development of international food law standards. Thirdly, the EU does not believe in free trade as evidenced by its unilateral ban. It also practices discrimination and does not believe in fair and ethical trading practices as it was exporting contaminated food to Asia37 and also because the ban was imposed without obtaining the views of the other side.38 An important point it makes is that harmful food or feed cannot be exported or re-exported from the EC (recital 24). Despite this provision, the EU has been exporting contaminated food to Asia.39 How can the EU expect its partners to be fair if it is not fair itself? The EU should exercise a level of care similar to the one it expects of its partners.

Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-worldmarket> accessed 14 May 2019.

37 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world-market> accessed 14 May 2019.

38 China, EU in Brussels Agree to Study Food Ban’ (China Daily, 1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019.

39 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world-market accessed 14 May 2019.

36

30

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of Regions Consumer policy strategy 2002-2006 (COM(2002) 208 final),40 in the rationale of the new consumer policy strategy in paragraph 2, states that â&#x20AC;&#x153;[m]easures have frequently sought to give consumers the means to protect their own interests by making autonomous, informed choices. This typically ensures that consumers will have sufficient, correct information before engaging in transactions â&#x20AC;Ś However, in some situations, providing a basis for informed choice and legal redress has been regarded as insufficient, notably as regards protection of physical health and safety. In such situations, harmonised rules are considered necessary to guarantee an adequate level of protection to all consumers quite independently of their ability to protect themselves by making informed choices. The decision to adopt such a measure depends to a large extent on a political assessment of the importance of the interest to be protected and the feasibility of consumers being able to protect themselves by informed choices in practice.â&#x20AC;? This communication came after antibiotics were discovered in shrimps. In the case of shrimps, the consumers were not given an opportunity to decide for themselves because the ban was imposed without their conference. The EU probably presumed that it was not feasible for its consumers to protect themselves even after being informed of the risk. It remains to be seen if the EU will inform its consumers if such a situation arises in the future so as to allow them to make choices.

Additionally, the meaning of political assessment has not been explained. Moreover, it is not clear why a political assessment is required, given that such problems can be resolved by the EU consumer institutions. This could point in the direction that the EU wants to impose not only its economic but also political will on the international scene.

In its Summary of Opinions Adopted, Plenary Assembly,41 the EESC aims to support Commission proposals so that all European citizens can be educated and trained as consumers as is their right and duty.42 This opinion was given one year after the ban was imposed. It reflects the general principles followed by the EU when defining its policies and taking action. It also presumes that citizens are capable of taking decisions as consumers when informed of the risks in a product. But the EU ignored this basic concept when it imposed the ban. Does the EU not want to educate and train its citizens as consumers because they might make choices not beneficial to the EU domestic industry (of shrimps, in this case)?

After analysing the ban in light of EU law, the following section discusses two pertinent

40

[2002] OJ C137/2.

European Economic and Social Committee, 26 and 27 March 2003, Brussels, 16 p.

42 European Economic and Social Committee, 26 and 27 March 2003, Brussels, p. 4.

41

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia cases that arose in the EU at around the same time as the ban on Asian shrimps.

In Alpharma Inc. vs. Council of the European Union43 and Pfizer Animal Health SA vs.

Council of the European Union,44 the Court elaborated on the use of the precautionary principle.

Article 1 of Council Regulation (EC) No 2821/98 of 17 December 1998 amending, as regards withdrawal of the authorisation of certain antibiotics, Directive 70/524/EEC concerning additives in feedingstuffs 45 banned the use of four antibiotics 46 as additives in animal feedingstuffs. Various scientific bodies claimed that animals would develop resistance to these antibiotics and that it would get transferred to humans via the food chain. But this had not been proved at the time of adoption of the impugned regulation. So the Council action was taken as a measure of precaution.

The Court held that it was possible to take pre-emptive action before the risk becomes manifest. It qualified this finding by stating that such a measure could not be based on mere speculation not proved by science but could be taken only if the risk was real. Risk means that there is some possibility that the negative consequences which the measure aims to avoid will occur. Therefore, the public authority must do a meticulous risk assessment considering the urgency of the risk. The Court also stated that the public authority must obtain the opinions of the relevant scientific bodies even if not provided for by law unless it has scientific reasons to impose the prohibition.

In addition, the Resolution on antibiotics in animal feed47 states that “the possible risk or danger posed by the use of antibiotics in animal feed must be adequately proven by scientific means in order to justify a ban” (recital C).

The contested regulation states that “SCAN48 is of the opinion that the possibility that an increase in the resistance pool at animal level might pose risks to humans has been neither proved nor disproved, but that such a risk might be expected to be demonstrated” (recital 9).

The EU’s own scientific body was not sure if resistance to antibiotics in animals could be transferred to humans. In fact, the risk of such transfer was only an expectation. In spite of this, this regulation banned the use of four antibiotics in animal feed. Further, it goes on to say that “the Committee concluded … that the use of virginiamycin as a growth promoter did not constitute a real immediate risk to public health in Denmark since Denmark had provided no

43

Case T-70/99 [2002] ECR II-03495.

Case T-13/99 [2002] ECR II-03305.

45 [1998] OJ L351/4.

46 Virginiamycin, bacitracin zinc, spiramycin, and tylosin phosphate.

47 [1998] OJ C167/306.

48 Scientific Committee on Animal Nutrition.

44

32

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia new evidence to substantiate the transfer of streptogramin resistance from organisms of animal origin to those resident in the human digestive tract, which would compromise the future use of human medicinal products” (recital 15). Countries like Denmark and Sweden had already done research in this field. It was the responsibility of the EU institutions to further that research and study the effects of virginiamycin in other MS. Instead, the Council banned the four antibiotics in all the MS. These cases and the ban on Asian shrimps point in the direction of a tendency on the part of the EU to impose bans without sufficient research regarding the risk involved in the banned product. Interestingly, there is research contradicting the stand of the EU. This research states that Chloramphenicol can enter shrimps by various means, for example (1) the antibiotic may be disposed of in water channels after human medical use and thus

enter the shrimps (2) it is naturally found in the environment and may thus enter the shrimps.

So every finding of this antibiotic in shrimps does not necessarily mean that it has been added by the exporters. Similarly, for Nitrofuran, there are many sources and every finding of this antibiotic in shrimps does not necessarily mean that it has been added by the exporters.

Moreover, aplastic anaemia has never been caused by the consumption of food having Chloramphenicol residues.49 The next part will examine the legality and the implications of the EU’s action in light of some important WTO cases.

III. ANALYSIS OF THE LEGALITY OF THE EU’S BAN IN LIGHT OF WTO CASES Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety50 states that “the adoption of measures concerning imported products … with a view to preventing risks to the safety and health of consumers must comply with the Community's international obligations” (recital 38).

The action of the EU can be analysed in light of some cases to determine (1) whether or not it complied with WTO law and (2) the real motive for the import ban.

JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209; JC Hanekamp, Utopia and gospel: Unearthing the good news in precautionary culture (Doctor of Philosophy, Tilburg School of Humanities and Digital Sciences, [s.n.] 2015) 63-78.

50 [2002] OJ L11/4.

49

33

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia In EC – Hormones,51 the Appellate Body (AB) held that the EU measures prohibiting the import and marketing of hormone-treated beef were not based on a risk assessment under article 5(1) of the Agreement on the Application of Sanitary and Phytosanitary Measures 52 (SPS Agreement). The AB said that the EU’s evidence was not specific and did not throw light on the kinds of risks arising from hormone residues in meat. As a result of this decision, the EU undertook extensive study of the impact of the relevant hormones on humans and found that it was not possible to quantify the risk. Therefore, it decided not to lift the ban.

But the fact is that American producers still do not have access to European markets. What would be the result if these American producers were to be replaced by the producers in the developing countries of Asia? In analysing the action of the EU in banning Asian shrimps, one can raise various questions. Firstly, did the EU conduct an adequate risk assessment in the case of Chloramphenicol and Nitrofuran? Secondly, if China had gone before the WTO as it had threatened to do53 and if the EU had lost, would it have undertaken more research under article 5(7) of the SPS Agreement?54 Thirdly, these antibiotics were used to ward off disease and not to improve the growth of the animals.

In Korea – Various Measures on Beef,55 the AB held that the dual retail system was not necessary to promote compliance with fraud avoidance laws under article XX(d) of the General Agreement on Tariffs and Trade56 (GATT). The AB held that the relative importance of the public interest that the measure is expected to protect has to be taken into account in order to

51

WTO, European Communities: Measures Concerning Meat and Meat Products (Hormones)—Report of the Appellate Body (16 January 1998) WT/DS26/AB/R and WT/DS48/AB/R <http://docsonline.wto.org>.

52 This article states that “[m]embers shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.”

53 ‘EU's Ban on Meat 'Runs Counter to Rules'’ (China Daily, 28 January 2002) <www.china.org.cn/english/2002/Jan/25989.htm> accessed 14 May 2019.

54 This article states that “[i]n cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.”

55 WTO, Korea: Measures Affecting Imports of Fresh, Chilled and Frozen Beef—Report of the Appellate Body (11 December 2000) WT/DS161/AB/R and WT/DS169/AB/R. 56 This article states that “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices.”

34

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia determine if a measure restricting trade is necessary and falls within article XX(d). 57 The importance of the public interest and the acceptability of the measure are directly proportional.

So the necessity of the measure will be more acceptable if the public interest to be protected has greater significance. Moreover, the extent of trade restriction has to be related to the extent to which it contributes to the regulatory goal. Applying this logic to the prohibition on imports of shrimps, it is clear that the ban does not really advance the goal stated in article XX(b), that of protection of human, animal or plant life or health.58 Were the EU to argue its case before the WTO, it would probably take this argument. But this measure is not necessary because the goal advanced is not considerable either. There are no chances that a consumer would get cancer from the consumption of shrimps containing antibiotics. So the link between the measure and the goal pursued is absent which results in the measure not being necessary.

In EC – Asbestos,59 the AB held that risk to health could be a criterion for determining likeness of competing products.60 The AB also held that public health could not be a separate criterion in itself and must be examined along with the physical properties of the product and consumer tastes and preferences. Thus, if the consumers were not informed of the risk involved in one of the products, the risk would not affect competition between the products. Furthermore, risk to health is a very wide term and covers situations where health can be affected without being endangered. In such a case, the risk has a smaller effect on the competition between the products. So if the risk is not imminent or is not sufficiently dangerous to be covered by article III(4),61 it can be covered under article XX(b). This could be a legal basis for discriminating

Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65.

58 This article states that “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (b) necessary to protect human, animal or plant life or health.”

59 WTO, European Communities: Measures Affecting Asbestos and Products Containing Asbestos—Report of the Appellate Body (12 March 2001) WT/DS135/AB/R. 60 Gabrielle Marceau and El Hadji Abourahmane Diouf, ‘L’OMC réconcilie commerce et santé : La nouvelle jurisprudence de l’Organe d’appel dans l’affaire “CE-AMIANTE”’ (2002) 12 L’Observateur des Nations Unies 49.

57

This article states that “[t]he products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.”

61

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia against imported products.62 A complete ban would be justified if the product were lethal.63 Another point on which the AB threw light was the necessity test under article XX(b). Following the Korea – Various Measures on Beef decision, it reiterated that the importance of the public interest served is paramount. It stated that it is not necessary for the measure to achieve all the goals it aims to achieve. It took into account the extent to which such public interest goals could be met by other measures. Finally, the AB held that the French measure fulfilled the requirements of article XX(b).

It is obvious that European shrimps would compete with Asian shrimps and they can be considered like products. There is a very high possibility that the ban aims to protect the domestic industry if two competing products are like. It is preferable to inform the consumers of the risk rather than take the shrimp off retailers’ shelves because that could reflect on the intention of the EU. The most important point is that the consumption of contaminated shrimps was not lethal. Therefore, a complete ban was unwarranted.

In US – Shrimp,64 the US ban on imports of shrimps was held to be discriminatory and thus, illegal. Therefore, the US amended it to allow imports of shrimps irrespective of the fishing method used as long as turtles were protected. Malaysia sought redress under article 21(5) of the Dispute Settlement Understanding. 65 It argued that the US was required to conclude a multilateral agreement in this respect and not just negotiate one. It also alleged that the US did not lift the ban and that it could not impose it without being authorised by an international instrument.66 The panel found that the US had made efforts in good faith to include all the parties in a multilateral framework and its action was no longer arbitrary. The AB confirmed this finding on appeal because compelling the US to conclude an agreement would put the other parties in a stronger position leading to reverse unilateralism thus defeating the principle of equality. Also, the AB approved the fact that the altered American law required achievement of Gabrielle Marceau and El Hadji Abdourahmane Diouf, ‘L’OMC réconcilie commerce et santé : La nouvelle jurisprudence de l’Organe d’appel dans l’affaire “CE-AMIANTE”’ (2002) 12 L’Observateur des Nations Unies 49, 56-57.

63 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65, 66.

64 WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Panel (15 May 1998) WT/DS58/R and Report of the Appellate Body (12 October 1998) WT/DS58/AB/R; WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia—Report of the Panel (15 June 2001) WT/DS58/RW and Report of the Appellate Body (22 October 2001) WT/D58/AB/RW. 65 This article states that “[w]here there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel.”

66 Hélène Ruiz Fabri, ‘Organisation mondiale du commerce Chronique du règlement des différends’ (2002) 3 Journal du Droit International 882.

62

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia a certain result whatever the means used.67 The AB stated that the importing state could not oblige the exporting state to follow a rigid policy set by the former because it had to bear in mind the different circumstances prevailing in the exporting countries. This deference to local conditions helps to guard against protectionism. However, the EU’s ban does not take into account the dissimilar situation of each country. It is no secret that China and Myanmar are at two different levels of development.

Despite the fact that the US started negotiations with the complainants after having adopted section 609 embodying the ban and despite the fact that this section constituted an effective source of pressure on those countries, the US had made continued efforts to come up with a regional convention.68 But the EU did not make any efforts. It first banned the shrimps and then started discussions with the exporting countries (without the aim of arriving at a multilateral agreement).

Significantly, the first AB report stated that the country imposing the restriction is in a stronger position especially when there are economic consequences. Such a measure would necessarily be prejudicial to developing countries when it is imposed by one of the largest economic powers in the world, the US in this case.69 The EU is an economic giant. Therefore, its trading partners have no choice but to follow its policies. This is not trade as trade is supposed to be equitable. The action of the EU means that Asian shrimp farmers must obey the EU if they want to exercise their rights under the GATT. Is the EU legitimately pursuing the goal of protection of public health or is it illegitimately pursuing the goal of protectionism?

This is the first ruling in the multilateral trading system in which unilateral extra-territorial measures to protect the environment were allowed, which is extremely disfavourable to developing countries because it is possible that such measures introduce protectionism in the garb of environmental protection. Such a precedent has allowed the EU to impose import restrictions without amending the WTO rules. The EU managed to get environmental concerns included in the WTO’s programme of negotiations in 2001 at Doha. Since 1995, the EU has been insisting on the inclusion of public interests in the WTO agenda but the real reason is that it wants the freedom to restrict trade. It does not take into account the fact that different societies have different priorities and thus, diverse policies. Therefore, it uses coercive measures such as Hélène Ruiz Fabri, ‘Organisation mondiale du commerce Chronique du règlement des différends’ (2002) 3 Journal du Droit International 882, 885.

68 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65, 72.

69 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65, 74.

67

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia import bans rather than democratic measures such as discussions and negotiations. Due to the decision in this case, importing countries can impose restrictions based on the process and production method (PPM) and ask exporting countries to change their domestic policies.

Economically powerful countries will be able to impose their will on weaker states which need access to their markets. There will be no such thing as free trade since the weaker countries will not have much of a voice in decision- making. The concept of exceptions is so much in conflict with the chapeau of article XX that restrictions are imposed only in very extreme situations but the threat of cancer by antibiotics was neither immediate nor extreme; rather it was absent.

In US – Tuna,70 the US took the defence of article XX(b) and (g).71 However, the panel found that the prohibition was not necessary. The US had not made sufficient efforts to exhaust alternative remedies (for example, an international agreement on tuna/dolphins) before imposing the ban. It also found that article XX(g) could not be applied extra-territorially to tuna originating in Mexico because its language “in conjunction with restrictions on domestic production or consumption” meant that the measures must be primarily aimed at rendering “effective” domestic restrictions. A country can control production and consumption only if they are under its jurisdiction. The panel concluded that the ban was an illegal quantitative restriction since it did not meet the requirements of article XX. The ruling was due to GATT’s resistance to cases in which PPM was a major factor.

Three years later, in US – Tuna,72 a separate panel came to the same conclusion i.e. the GATT did not apply to PPM. The complainant, the EU, stated that the actions of all nations would be obstructed if one nation enforced strict regulations for the protection of dolphins. The panel held that the exporting country had to use fishing methods conforming to the American ones in order to satisfy the terms of the US law. But the US was not entitled to use the GATT to compel other countries to adopt its policies. The US law prohibited the tuna simply on the basis of a country’s policies regardless of whether an individual tuna may have been caught without harming dolphins. Similarly, the EU prohibited all shrimps regardless of whether an individual shrimp may not contain antibiotics.

These US – Tuna cases (despite both reports being unadopted) provide another example

United States – Restrictions on Imports of Tuna (1991) GATT BISD DS21/R - 39S/155.

This article states that “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.”

72 United States – Restrictions on Imports of Tuna (1994) GATT BISD DS29/R. 70 71

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia of superpowers adopting unilateral measures to change domestic policies of other countries. Of course, they have been overruled by US – Shrimp. In the case of Asian shrimps, the EU would not succeed if it took the argument of article XX(b) if the ruling of the panel in the above case that article XX(g) does not have extra- territorial jurisdiction is applied to article XX(b). The panel concluded that a country can control the production and consumption of a natural resource within its jurisdiction. In this case, the production of shrimps was not within the jurisdiction of the EU. Since the panel had held that the US cannot force countries to change their policies in accordance with its own policies, the same would be applicable to the EU. The ban does not explicitly require countries to change their policies. However, countries have changed their policies as a consequence of the ban. There is evidence to this effect. Countries where the use of Chloramphenicol and Nitrofuran was allowed banned their use after the EU’s prohibition.73 Thus, the prohibition did have extra-territorial effect. According to the panel, the word “necessary” means that no cooperative efforts were possible to solve the problem. But the EU did not even try to use such measures so one does not know if they were possible. Also, the GATT cases did not touch upon PPM, even though that has been overruled by US - Shrimp.

The antibiotics were mixed in shrimp feed when shrimps were raised on shrimp farms. This is part of the production process. Moreover, in the above case, the EU showed concern about multilateral measures but it used a unilateral measure to protect its consumers from antibiotics.

It is, thus, a clear restriction on trade. In fact, the ban only served to bring down the demand after creating a scare about the antibiotics, thus, proving the role of the EU in restricting trade.

Additionally, the EU violated its own argument in US – Tuna that the actions of all nations would be obstructed if one nation enforced strict regulations for the protection of dolphins, by enforcing strict regulations regarding the residues of antibiotics in shrimps.

In its Summary of Opinions Adopted, Plenary Assembly,74 the EESC intends to aid the Commission’s efforts to satisfy the justified demands of developing countries. It proposes to provide continuous support to less developed countries by transferring resources and technical expertise so that their participation in WTO processes is substantial and fruitful.75 Had the Asian countries brought the case to the WTO, would the EESC have supported their participation in the WTO dispute settlement process or would the Commission have considered such participation unjustified given that it would have been defending itself?

Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358.

74 European Economic and Social Committee, 26 and 27 March 2003, Brussels, 16 p.

75 European Economic and Social Committee, 26 and 27 March 2003, Brussels, p. 6.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia These cases show the EU’s preoccupation with its consumers’ health. Its over-cautious approach leads it to expect zero risk, something which cannot exist unless trade is banned.

Additionally, there was no urgency to take the measure as the risk from Chloramphenicol and Nitrofuran was not immediate; rather it was absent. In February 2000, the European Commission released a communication on the precautionary principle. 76 It stated that the precautionary principle should be applied when “there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen for the Community” (paragraph 3, page 2).

But there were no chances of getting cancer from the contaminated shrimps. Thus, there were no reasonable grounds for the EU’s ban. The EU can claim that it has acted as a measure of precaution but the consequences are very grave for Asian shrimp farmers. In fact, the zero tolerance policy of the EU meant to protect European citizens from potential non-existent risks results in poor Asian farmers losing their livelihood.77 If the EU were so concerned about its consumers, national sovereignty, and freedom of trade, it would use methods which fulfil all the three objectives such as negotiations, instead of bans. These cases and the ban on Asian shrimps reveal a tendency on the part of the EU to impose unilateral measures. It has used its commercial policy to impose its power on the rest of the world. It wants to influence other countries’ laws and standards to increase its authority over their markets and at the same time denying them access to its markets. The fact that it is a party in many of the cases shows its desire to impose its point of view over a multinational organisation like the WTO and other countries. This is not plain unfurling of commercial policy; rather it amounts to pursuing political ends.

In fact, Pascal Lamy, the EU Commissioner for Trade at that time, even expressed overt dissatisfaction at the forming of the Free Trade Areas of the Americas in 2001. He felt that the US would be spreading its opinions, rules, and ideas throughout the American continent which would pose a serious problem for the EU. He even stated that by being a party to this Free Trade Area, the South American states would have to decide what sort of “geo-economic-political” balance they wanted between the US and the EU.78 It is not surprising why such a grouping should pose a problem for the EU. The EU wants to penetrate South American markets and

Commission, ‘Communication from the Commission on the precautionary principle’ COM (2000) 1.

JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209.

78 Olivier Cattaneo, Quelles ambitions pour la politique commerciale de l’Union européenne ?, La stratégie d’influence de l’Union européenne (Les notes de l’ifri, no. 39, Institut français des relations internationales 2002) 24-25.

76 77

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia these kinds of groupings do not augur well for it. Another instrument used to pressure developing countries is the Generalised System of Preferences (GSP) scheme. It is in the developing countries’ interest not to displease the EU since it can suspend all benefits under the GSP scheme in certain cases. 79 The EU, being aware of the influence it exerts on the international scene, prefers to regulate the functioning of markets and not only conquer them.

The EU has a propensity to regulate and knows that making use of public concerns (such as consumer protection) is an effective way of doing so. Additionally, the EU also wants to control the working of various sectors in developing countries. What could be the reason behind this?

The world was traditionally divided into rich countries with high productivity and high wages, and poor countries with low productivity and low wages. But now there is a third category too. Some countries have high productivity and low wages. Thus, their capacity to compete is much higher. The emergence of such economies is viewed as a threat by developed countries. A report released in 1993 by former President of the European Commission Jacques Delors stated that the reason for growing unemployment in Europe was the competition from such countries where costs were simply unrivalled when compared with those in Europe.80 This is the reason why the EU wants to control the working of these countries. The aim of development is to improve the life of millions of people. This goal will not be achieved if the EU and other developed countries impose trade restrictions.81

CONCLUSION Various foods labelled as “made in factory dealing with Soya or peanuts” are found in the market because people are allergic to them. Medicines containing Sulpha are freely available in the market even though some people may react fatally to it. People can even die when they are vaccinated or when a medicine is tried on them before they are administered the full dose. But these products have not been banned. Why not? Because the chances of reacting to these products are so low that it would not be in the interest of society to ban them. If zero tolerance standards are not imposed for allergies to peanuts and Soya despite abundant data on the danger they pose to certain persons and if these foods are not banned, then seafood with residues not Olivier Cattaneo, Quelles ambitions pour la politique commerciale de l’Union européenne ?, La stratégie d’influence de l’Union européenne (Les notes de l’ifri, no. 39, Institut français des relations internationales 2002) 30.

79

Paul R Krugman, La mondialisation n’est pas coupable : Vertus et limites du libre échange (Casbah Editions 1999) 62-63.

81 Paul R Krugman, La mondialisation n’est pas coupable : Vertus et limites du libre échange (Casbah Editions 1999) 80.

80

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia harmful to the general public should not be banned either.

In fact, the Asian developing exporting countries were left with no choice but to meet the demands of the EU since it was the buyer or stop exporting to the EU. Many Thai companies stopped exporting to the EU after the ban. Thai shrimp exports to the EU fell from 14,000 tons in 2001 to 6,000 tons in 2002.82 The EU wants to be seen as a developer in Asian circles but that is not possible in such a situation. This reflects poorly on the EU’s interest in developing the region. Moreover, the Asian countries were doing their best to resolve the issue. Some of them already had laws prohibiting the use of the antibiotics and others banned their use in their countries.83 So there was no urgency to take such a harsh measure. As a consequence, banning imports from entire countries because of a few contaminated shiploads is viewed as poor policy. Consumer protection can be accomplished in other ways such as testing and holding shipments that fail the test. Developed countries should help developing countries to improve their veterinary practices and checks on edible products. But is Europe ready to do this?

In comparison, the US FDA took time to bring its standard of Chloramphenicol down from 5 ppb to 0.3 ppb. It first brought down its standard to 1 ppb in May 2002. Later, in July 2003, it brought down its standard to a level of 0.3 ppb. It did not impose an outright ban on the imports.

With respect to Nitrofuran, it announced testing of shrimps in 2004.84 Given this attitude of the EU, what were the consequences of such a ban for EU-Asia relations?

The cooperative attitude of the Asian governments was tempered by calls from domestic industry to retaliate. The ASEAN Fisheries Federation called for a reduction in or even cessation of exports to the EU until it eased its restrictions. This call was made due to the EU’s opaque and discriminatory ban, a non- tariff barrier, according to which contaminated imports were to be destroyed without recourse to appeal. The Federation also intended to ask the governments of ASEAN countries to impose stringent laboratory controls on European imports and to retaliate by destroying contaminated products. It also intended to hire a lawyer to file a suit

‘ASEAN Fisheries Federation Says EU Ban Unfair’ (Shrimp Media Monitoring “A Synthesis of Shrimp News From the International Media and Internet”, 24 March–7 April 2003) <http://library.enaca.org/Shrimp/Newsletter- 24-Mar-7-Apr-2003.pdf> accessed 15 May 2019.

82

Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358.

84 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358.

83

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia against the EU.85 The Chinese authorities said that the ban was unacceptable. Gao Yan, the spokeswoman of the Chinese Ministry of Foreign Trade and Economic Cooperation said that the EU’s report did not take into account Chinese opinion. She termed it unreasonable. She also stated that the EU’s action was unfair to China’s trade. China was seriously concerned that the ban might do great harm to EU-China ties. She urged the EU to withdraw the erroneous decision to avoid lasting damage to the smooth development of EU-China relations, stating that China believed in solving such issues through bilateral negotiations.86 This entire episode shows that the EU attaches great importance to its consumers. That is understandable but what is unfortunate is that this is not the truth. The EU attaches more importance to protecting its industry even though it expects other players to comply with WTO rules and not practice protectionism. This is not consumer protection; it is protectionism disguised as consumer protection. Even its own importers were against the ban. The Europe Importers’ Association of Dried Fruit, Canned Goods, Honey and Spice Products, in a letter to the European Commission, termed the ban inordinate and improper. It said that the measure threatened the subsistence of EU companies importing Chinese animal products and that it went beyond a reasonable extent. It remarked that the decision had the opposite effect on the genuine objective because such comprehensive sanctions made people sceptical towards the EU’s policies. 87 Imposing such a measure because it provides de facto protection to indigenous shrimp industry is thus less than ethical.

So where are EU-Asia relations headed?

‘ASEAN Fisheries Federation Says EU Ban Unfair’ (Shrimp Media Monitoring “A Synthesis of Shrimp News From the International Media and Internet”, 24 March–7 April 2003) <http://library.enaca.org/Shrimp/Newsletter24-Mar-7-Apr-2003.pdf> accessed 15 May 2019.

86 ‘EU Ban on Chinese Food 'Unacceptable'’ (People’s Daily Online, 28 January 2002) <http://en.people.cn/200201/28/eng20020128_89442.sht> accessed 15 May 2019.

87 Du Minghua, ‘A European Organization Opposes EU Ban on Import of Chinese Animal-related Food’ (People’s Daily Online) <http://en.people.cn/200202/06/print20020206_90049.html> accessed 15 May 2019.

85

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES

Agreement on the Application of Sanitary and Phytosanitary Measures ‘ASEAN Fisheries Federation Says EU Ban Unfair’ (Shrimp Media Monitoring “A Synthesis of Shrimp News From the International Media and Internet”, 24 March–7 April 2003) <http://library.enaca.org/Shrimp/Newsletter-24-Mar-7-Apr-2003.pdf> accessed 15 May 2019 Association of South East Asian Nations (ASEAN)’ (European Commission) <http://ec.europa.eu/trade/policy/countries-and- regions/regions/asean/> accessed 13 May 2019 Bannink D, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffsdumped-world-market> accessed 14 May 2019 Case T-70/99 Alpharma Inc. v Council of the European Union [2002] ECR II-03495 Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II-03305 Cattaneo O, Quelles ambitions pour la politique commerciale de l’Union européenne ?, La stratégie d’influence de l’Union européenne (Les notes de l’ifri, no. 39, Institut français des relations internationales 2002) ‘China, EU in Brussels

Agree to

Study Food Ban’ (China Daily, 1

February 2002)

<www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019 Commission, ‘A Long-Term Policy for China-Europe Relations’ (Communication) COM(95) 279 final Commission, ‘Communication from the Commission on the precautionary principle’ COM (2000) 1 Commission, ‘Europe and Asia: A Strategic Framework for Enhanced Partnerships’ (Communication) COM(2001) 469 final Commission Recommendation of 10 January 2003 concerning a coordinated programme for the official control of foodstuffs for 2003 (notified under document number C(2002) 5556) [2003] OJ L7/76 Commission, ‘Towards a New Asia Strategy’ (Communication) COM(94) 314 final Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of Regions Consumer policy strategy 2002-2006 (COM(2002) 208 final) [2002] OJ C137/2 Council Directive 96/22/EC of 29 April 1996 concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of ß-agonists, and repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC [1996] OJ L125/3 Council Directive 96/51/EC of 23 July 1996 amending Directive 70/524/EEC concerning additives in feedingstuffs [1996] OJ L235/39

44

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Council Directive 89/108/EEC of 21 December 1988 on the approximation of the laws of the Member States relating to quick-frozen foodstuffs for human consumption [1989] OJ L40/34 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products [1985] OJ L210/29 Council Directive 92/59/EEC of 29 June 1992 on general product safety [1992] OJ L228/24 Council Directive 70/524/EEC of 23 November 1970 concerning additives in feeding-stuffs [1970] OJ L270/1 Council Regulation (EC) No 2821/98 of 17 December 1998 amending, as regards withdrawal of the authorisation of certain antibiotics, Directive 70/524/EEC concerning additives in feedingstuffs [1998] OJ L351/4 Council Resolution of 2 December 2002 on Community consumer policy strategy 2002-2006 [2003] OJ C11/1 Debaere P, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353 Demarty J-L, ‘EU-Asia Trade – The Bright Future Ahead’ (Friends of Europe, 29 May 2018) <www.friendsofeurope.org/publication/eu-asia-trade-bright-future-ahead> accessed 13 May 2019 Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety [2002] OJ L11/4 Dispute Settlement Understanding EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2015. Scientific Opinion on nitrofurans and their metabolites in food. EFSA Journal 2015;13(6):4140, 217 pp. doi:10.2903/j.efsa.2015.4140 ‘EU

Ban on Chinese Food 'Unacceptable'’ (People’s Daily Online,

28 January 2002)

<http://en.people.cn/200201/28/eng20020128_89442.sh> accessed 15 May 2019 ‘EU's Ban on Meat

'Runs Counter to Rules'’ (China Daily, 28 January 2002)

<www.china.org.cn/english/2002/Jan/25989.htm> accessed 14 May 2019 Fabri HR, ‘Organisation mondiale du commerce Chronique du règlement des différends’ (2002) 3 Journal du Droit International 882 General Agreement on Tariffs and Trade Generalised System of Preferences Hanekamp JC, Utopia and gospel: Unearthing the good news in precautionary culture (Doctor of Philosophy, Tilburg School of Humanities and Digital Sciences, [s.n.] 2015) — —, Frapporti G, Olieman K, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209

45

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Krugman PR, La mondialisation n’est pas coupable : Vertus et limites du libre échange (Casbah Editions 1999) Lanfranchi M-P, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65 Marceau G and Diouf EHA, ‘L’OMC réconcilie commerce et santé : La nouvelle jurisprudence de l’Organe d’appel dans l’affaire “CE-AMIANTE”’ (2002) 12 L’Observateur des Nations Unies 49 Minghua D, ‘A European Organization Opposes EU Ban on Import of Chinese Animal-related Food’ (People’s Daily Online) <http://en.people.cn/200202/06/print20020206_90049.html> accessed 15 May 2019 Muttevi SL and Pavan A, ‘EU turns down antibiotics-laced shrimp shipment’ (The New Indian Express, 25 October 2017) <www.newindianexpress.com/states/andhrapradesh/2017/oct/25/eu-turns-down-antibiotics- laced-shrimp-shipment-1682162.html> accessed 13 May 2019 Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on consumer policy strategy 2002-2006’ (COM(2002) 208 final) [2003] OJ C95/1 Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the European Parliament and of the Council laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption’ (COM(2002) 377 final – 2002/0141 (COD)) [2003] OJ C95/22 Phongvivat S, ‘Nitrofurans Case Study: Thailand's experience’ (Food and Agriculture Organization) <www.fao.org/3/y5723e0u.htm> accessed 14 May 2019 Pihl LH, ‘Chinese foods to be banned by EU’ (EU Observer, 28 January 2002) <https://euobserver.com/news/4949> accessed 10 May 2019 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1 Resolution on antibiotics in animal feed [1998] OJ C167/306 Summary of Opinions Adopted, Plenary Assembly, European Economic and Social Committee, 26 and 27 March 2003, Brussels, 16 p ‘SuspiciousShrimp’(Food and Water Europe,4 November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 13 May 2019 Treaty establishing the European Community (Nice consolidated version) [2002] OJ C325/33 [1997] OJ C340/173 WTO, European Communities: Measures Affecting Asbestos and Products Containing Asbestos—Report of the

46

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Appellate Body (12 March 2001) WT/DS135/AB/R <http://docsonline.wto.org> WTO, European Communities: Measures Concerning Meat and Meat Products (Hormones)—Report of the Appellate Body (16 January 1998) WT/DS26/AB/R and WT/DS48/AB/R WTO, Korea: Measures Affecting Imports of Fresh, Chilled and Frozen Beef—Report of the Appellate Body (11 December 2000) WT/DS161/AB/R and WT/DS169/AB/R WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia—Report of the Panel (15 June 2001) WT/DS58/RW and Report of the Appellate Body (22 October 2001) WT/D58/AB/RW WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Panel (15 May 1998) WT/DS58/R and Report of the Appellate Body (12 October 1998) WT/DS58/AB/R

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

JURIDICAL ANALYSIS RELATED TO HOAX AS A THREAT OF NATIONAL SECURITY IN INDONESIA Fines Fatimah1, SH., MH.

ABSTRACT The trend in Indonesia is to make the Hoax a part of politics, where attacks by political opponents are carried out through social media. As a result of lying news that is often charged to divide, spread and hate can cause chaos in the community. This needs to be realized as part of the threat of state integrity, the current regulation of the Hoax in Indonesia is regulated in UUITE and is seen as a crime in electronic media. This paper is a normative study and will answer 2 problems namely the description of the regulation of Hoax crime in Indonesia and try to answer whether Hoax is seen as a crime against National Security.

Keywords: hoax, national security

Introduction The new source of power is not money in the hands of a few but information in the hands of many," said John Naisbitt in his book entitled "Megatrends Ten New Directions Transforming Our Lives". An author Alvin Toffler in one of his books states that human civilization today has entered a new era of "the third wave", which in this era refers to the present era, that the function of information is more important than in previous eras.

Information technology has brought enormous changes to the community. However, the development of information technology today has not only had positive impacts but also negative impacts on the other side. Submission of information is so fast, unlimited space and time (borderless). Easily everyone produces, accesses and disseminates information through several social media such as Facebook, Twitter, or mobile phone messages such as WhatsApp, Telegram and so on.

Without filtering information, whether received, produced or disseminated, and without sufficient knowledge about "freedom of expression" on social media, will bring legal consequences to its users. The issue of national security is directly proportional to the security

1

A Lecturer in Faculty of Law, Universitas Brawijaya Jl. MT. Haryono No. 169, Malang, East Java, Indonesia

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia and stability of the people. A wise and intelligent society in social media will certainly support and contribute directly in efforts to maintain national security.

In 2017, the police dismantled hate speech syndicates or hate speech and SARA through social media. The hate spreader network is called Saracen. The police have arrested three suspects in this case. They are Jasriadi who plays the chairman, Muhammad Faizal Tanong as the coordinator of the media and information sector, and Sri Rahayu Ningsih as the regional group coordinator. A Social Media observer from Provetic, Iwan Setiawan, assessed that syndicates that spread hate speech or SARA and hoax issues such as the Saracen group, had a bad effect on the integrity of the country. Vice President Jusuf Kalla said hoaxes had the potential to cause two countries to fight. JK gave an example of a hoax victim is diplomatic relations between Saudi Arabia and Qatar. both of these opinions provide enough reasons why it is necessary to measure hoaxes from the perspective or perspective of national security threats given the potential chaos it will cause, by finding the right position of spreading hoax and then determining what legal policies should be taken by the Indonesian government in order to avoid the potential damage or chaos that can be caused by it.

Regulation Regarding Hoaxes In Indonesia Understanding the word "hoax" often we lately both through the internet, television and from other social media. Hoax is derived from English, which means deception, deception, false news, fake news and rumors. So "hoaxes" can be interpreted as incorrect information. According to Wikipedia, hoaxes are false reports, that is an attempt to deceive or fool the readers and listeners into believing something. Usually someone who spreads hoaxes knowingly commits a lie and spreads false information.

It aims to lead opinions and then form perceptions of information. Today the hoax is quite closely related to political issues. Usually this is done to spread rumors to benefit certain parties.

But not infrequently hoaxes are found in other cases. An explanation of hoax which means fraud, can also be found in a 1965 book, entitled Candle in the Dark like Thomas Ady. The use of the word hoax became popular around 2006. Obtained from a film called Hoax starring Richard Gere and directed by Lasse Halstorm.

Many sites say that the word hoax was first used by American netizens. This refers to the title of the film "the Hoax" in 2006 directed by Lasse Hallstorm. The film is considered to contain a lot of lies, since then the term "hoax" appears whenever there is a false message. Meanwhile, according to Robert Nares, the word "hoax" has emerged since the 18th century which is another

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia word for "hocus" which is a magic game. Regardless of the origin of the word today there are many news media that spread hoaxes or false coverage.

The crime of spreading hoax news is regulated in Law No. 19 of 2016 concerning Information and Electronic Transactions, namely Article 28 Paragraph (1) of the ITE Law contains "Everyone intentionally and without the right to spread false and misleading news that results in consumer losses in Electronic Transactions", Article 28 Paragraph (2) of the ITE Law contains "Everyone intentionally and without the right to disseminate information intended to incite hatred or hostility of certain individuals and / or groups of people based on ethnicity, religion, race, and between groups (SARA). Criminal provisions in the ITE Law contain details of criminal threats for hoaxes spreaders, Article 45 of the ITE Law reads "every person who fulfills the elements referred to in Article 28 Paragraphs (1) and (2) shall be sentenced to a maximum of six years imprisonment and or a maximum fine of Rp. 1 billion ". Spreaders of hoaxes can be charged with 2 (two) articles in the Criminal Code, namely Article 14 Paragraph (1)

Anyone who, by broadcasting false news, intentionally issues uproar among the

people, is sentenced to a maximum prison sentence of ten years (2)

Anyone who broadcasts a news or issues a notice that can issue uproar among

the people, while he should be able to think that the news or notification is a hoax, is punishable by imprisonment for a maximum of three years.

Article 15, contains "Anyone who broadcasts uncertain news or news that is excessive or incomplete, while he understands at least it is reasonable to suspect that such news will or can publish mischief among the people, is punishable by imprisonment of up to two year".

The development of information technology has brought enormous changes to the community. However, the development of information technology today has not only had positive impacts but also negative impacts on the other side. Submission of information is so fast, unlimited space and time (borderless). Easily everyone produces, accesses and disseminates information through several social media such as Facebook, Twitter, or mobile phone messages such as WhatsApp, Telegram and so on.

Without filtering information, whether received, produced or disseminated, without sufficient knowledge of "freedom of expression" on social media, will bring legal consequences to its users. This is what lies behind the importance of social media wisely.

Some of the crimes that can threaten social media users are, among others, the crime of hate speech or the spread of hatred, defamation, slander, and also insults. These four types of crime have different characteristics from each other, but are often interpreted to be the same without clear boundaries between the four.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The Team of School of Peacemaking and Media Technology interprets Hate Speech as "broad term that refers to a range of negative discourse that incites hostility", which can be translated as follows: "broad term that refers to various negative discourses that incite hostility / hatred" . In Indonesia hate speech is a new term that refers to "utterance of hatred" and in legal products this term only appears in Circular Letter No. 6 / X / 2015 concerning Handling Hate Speech. However, in this case it is necessary to know that "hate speech" has been regulated as a criminal offense as regulated in Article 156 of Law No. 1 of 1946 concerning the Criminal Code which is then abbreviated as "KUHP", Article 28 paragraph (2) of Law No. 11 of 2008 concerning Electronic Information and Transactions, as amended by Law No.19 of 2016 concerning Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions (hereinafter referred to as ITE Law). The formulation of Article 156 of the Criminal Code is as follows: "Anyone who publicly expresses feelings of hostility, hatred or contempt of one or several groups of the Indonesian people, is threatened with a maximum imprisonment of four years or a maximum fine of three hundred rupiah". The Indonesian people group referred to in this matter covers each and every part of the Indonesian people who are different from a number of other parts because of their race, home country, religion, place of origin, ancestry, nationality, or position according to State Administration.”

While the sound of Article 28 paragraph (2) of the ITE Law is as follows: "Every person intentionally and without the right to disseminate information intended to incite hatred or hostility of certain individuals and / or groups of people based on ethnicity, religion, race, and intergroup (SARA).”

Another case with Hate Speech, Defamation is regulated in Article 310 of the Criminal Code, which is formulated as follows: "(1) Anyone who deliberately attacks the honor or reputation of a person, by accusing something, which has a clear intention so that it is known publicly, is threatened, because of pollution, with a maximum imprisonment of nine months or a maximum fine of three hundred rupiahs.

(2) If this is done in writing or broadcast, shown or posted in public, then the person who is guilty of written pollution is liable to a maximum of one year and four months imprisonment or a maximum fine of three hundred rupiahs.”

In relation to social media, as long as a statement by a social media user attacks an individual's honor and reputation carried out in writing, it can be interpreted that his actions have fulfilled the formulation of Article 310 paragraph (2) above and can be held accountable.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Furthermore, the crime of "defamation" is regulated in Article 311 of the Criminal Code (1), formulated as follows: "(1) If the person committing a crime of pollution or written pollution, in the case that it is permissible to prove that what is alleged is true, does not prove it and the accusation is in contradiction with what is known, then he is threatened for defamation, with a maximum imprisonment of four yearsâ&#x20AC;?

Finally, the criminal act of contempt is regulated in Article 315, with the following formulation: "Any deliberate insult that is not of a pollution or written pollution, which is committed against a person, either publicly orally or in writing, or in advance of the person himself orally or in deeds, or with a letter sent or received to him, is threatened because humiliation, with a maximum jail sentence of four months and two weeks or with a maximum of three hundred rupiah.â&#x20AC;?

In this case Article 310 of the Criminal Code, Article 311 of the Criminal Code and Article 315 of the Criminal Code is a Klacht Delict or criminal offense / criminal complaint (see article 319 of the Criminal Code), which requires complaints from an injured party or victim to be subject to criminal justice processes.

Hoax in the National Security Perspective From the epistemological point of view, security comes from the Latin terms "se" and "stolen" which means free from danger or free from fear. "Se" also means "without" and "stolen" also means "uneasiness" (discomfort), so "security" can also be formulated or understood as a situation without risk or situation without threat.

Furthermore, national security is essentially a dynamic condition of peace and tranquility of the nation and state, which is the result of the integration and interaction of dynamic factors that enable all people to develop according to their abilities and demands in life in a society based on Pancasila and the 1945 Constitution. The National Security demands are as follows: a.

Ensuring the stability of security and the continuity of the nation's struggle,

through efforts to foster national development and maintenance of world peace in general and Southeast Asia in particular; b.

The realization of the dynamic conditions of peace and peace of the nation and

the Indonesian state requires great effort and the participation of the whole community.

Therefore, it takes soul, determination and spirit of devotion and militancy of all Indonesian people from all walks of life and groups 52

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia c.

Enhancing national security is carried out by continuing to carry out State defense

efforts.

But in its development, especially since the 1990s the spectrum of "threats to" was expanded to reach, but not limited to, human security, both as individuals and as groups / collectivities. The expansion of this spectrum appears from the formulation put forward by the UN, which requires that the concept of "security against" be changed from "emphasis on national security" towards greater emphasis on "human security". Its achievements also experienced a shift in pressure, from security achieved through "armament" to security that was realized through "human development": from an emphasis on territorial security "towards" food, employment and environmental security.â&#x20AC;? In relation to threats, there are two approaches, namely: (a) threats to what and (b) threats from what. In terms of threats to what, at first the emphasis was on the "state".

The country is the target of threats; and therefore, State security becomes the initial paradigm in understanding security. The security function is more given to efforts to protect the country. This can be seen from the functions of each security institution: the army, police and intelligence, for example, which emphasizes neara security. For defense, for example, this function places emphasis on efforts to protect the integrity of the State's safety territory and the country's sovereignty. a.

Basic rights of individuals, including the right to life, equal position before the

law, protection against discrimination based on race, religion, ethnicity, or gender b.

Legal rights, including access to legal protection as well as the right to obtain

legal proceedings legally c.

Civil liberties, including freedom of thought, opinion and practice of worship /

d.

Rights to basic needs, which include access to food, basic health insurance, and

belief.

fulfillment of minimum living needs. e.

Economic rights, including the right to work, the right to recreation and rights to

social security. f.

Political rights, including the right to be elected and elected in public office, and

the right to participate in the administration of the State As for what threats, there are at least two ways to look at them: a.

The source of the threat comes from within

Internal threats, types and forms, consist of military and non-military threats and traditional-conventional and non-traditional / non-conventional threats. b.

Sources of threats from abroad 53

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Generally the threat source from the external environment is associated with military threats which are the area of military competence in responding to them. Hoax or spreading false news in Indonesia is rife ahead of the Presidential Election, one example is the spreading of false news carried out by Ratna Sarumpaet who at that time served as one of the winning teams of the Prabowo-Sandiaga Uno pair. Ratna claimed to have been persecuted by a group of people and uploaded her photo so that it could be accessed by anyone. Responding to this, Prabowo's team, including himself, reacted and as a result of this incident, the political atmosphere in Indonesia returned to heat up.

Hoax is a threat from the existence of civil rights, namely the right to think and think, and this is a potential threat that comes both from internal and external to the State. In the Draft Law on "hoax" national security is not regulated as a form of crime that threatens national security. As is known hoax included in the category of "press crime".

Articles that threaten the perpetrators of spreading false news are clear in Indonesia, but with the advancement of the information media at present, the law in Indonesia may not have reached if the perpetrators were from "outside" the State. Certainty in law enforcement can still be questioned again.

Conclusion Hoax is a threat from the existence of civil rights, namely the right to think and think, and this is a potential threat that comes both from internal and external to the State. In the Draft Law on "hoax" national security is not regulated as a crime. As is known hoax included in the category of "press crime".

Articles that threaten the perpetrators of spreading false news are clear in Indonesia, but with the advancement of the information media at present, the law in Indonesia may not have reached if the perpetrators were from "outside" the State. Certainty in law enforcement can still be questioned again.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES

Barda Nawawi Arief, Kebijakan Legislatif Dalam Penanggulangan Kejahatan Dengan Pidana Penjara, GENTA Publishing, Yogyakarta 2010.

Cornelis Lay, Keamanan (Dimensi-Dimensi Kritis Keamanan Nasional) Pensil-324, Jakarta 2012.

Heru Susetyo, Menuju Paradigma Keamanan Komprehensif Berperspektif Keamanan Manusia dalam Kebijakan Keamanan Nasional Indonesia, Lex Jurnalica Vol. 6 No.1, Desember 2008.

Hery Darwanto, Operasi Militer Selain Perang, hlm. 1, https://www.kemhan.go.id/wpcontent/uploads/2015/12/bab47c96d3592e7652310529454b1107.pdf, diakses pada 7 Mei 2018.

Mustafa Abdullah, Sistem Pertanggungjawaban Tindak Pidana Pers (dalam 6 Dasawarsa Harkristuti Harkrisnowo, Demi Keadilan, Antologi Hukum Pidana dan Sistem Peradilan Pidana), Pustaka Kemang, Jakarta 2016.

Oscar A. Gรณmez dan Des Gasper, Human Security: A Thematic Guidance Note for Regional and National Human Development Report Teams, United Nations Development Programme,2015.

Ronny Hanitijo Soemitro, Metodologi Penelitian Hukum, Ghalia Indonesia, Jakarta, 1982.

P. H. Liotta. Boomerang Effect: The Converegence of National and Human Security, Security Dialogue, Vol. 33, No. 4, 2002.

Ronny Hanitijo Soemitro, Metodologi Penelitian Hukum, Ghalia Indonesia, Jakarta, 1982.

Richard Jolly dan Deepayan Basu Ray, The Human Security Framework and National Human Development Reports: A Review of Experiences and Current Debates, United Nations Development Programme, 2006.

Rizal A.Hidayat, Keamanan Manusia dalam Perspektif Studi Keamanan Kritis Terkait Perang IntraNegara, Journal of International Studies, Volume 1, No. 2, Mei 2017.

Soerjono soekanto dan Sri Mamudji, Penelitian Hukum Normatif (Suatu Tinjauan singkat), Rajawali Pers, Jakarta 2010.

Suryanto Suryokusumo, Konsep Sistem Pertahanan Nonmiliter (Suatu Sistem Pertahanan Komplemen Sistem Pertahanan Militer dalam Pertahanan Rakyat Semesta), Yayasan Pustaka Obor Indonesia, Jakarta 2016.

United Nations Development Programme (UNDP), Human Development Report 1994, New York and Oxford: Oxford University Press, 1994.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

JURIDICAL ANALYSIS RELATED TO HOAX AS A THREAT OF NATIONAL SECURITY IN INDONESIA Soeung Bunly

ABSTRACT Like Rwanda and Srebrenica, Cambodia experienced genocidal regime committed by Khmer Rouge that killed around two million people in1975-1979. Despite the genocide occurred three decades ago, Cambodia remains in the process of rebuilding its stage and seeking the transitional justice which led to the creation of the Khmer Rouge Tribunal (ECCC) to bring the top former Khmer Rouge officials to justice. However, ECCC itself was marred with corruption and its neutrality while the government apparently failed to continue its cooperation with the former on the case 003 and case 004. It even violated human rights blatantly. The research is aimed at examining the local aspect of how grassroots Cambodians both victims and the former Khmer Rouge cadres cope with their traumatizing, haunting past experience in their daily life while both national and local reconciliation by the government and NGOs are close to absence.

Keywords: reconciliation; peace; Khmer Rouge; Cambodia

1. KHMER ROUGE HISTORY Embracing communist ideology of Mao Zedong, Khmer Rouge1 took over north-eastern part of Cambodia since 1960s. They gained more control when a military coup was staged against Prince Norodom in 1970. KR gained more support from the survivors of American B-52 bombing campaigns due to the growing anti-American sentiments amongst Cambodian people in the countryside while the Vietnam-American war was going on. On April 17, 1975, KR military marched into Phnom Penh, the capital city of Cambodia, announcing the victory over Lon Nol regime and establishing a new regime known as Democratic Kampuchea (DK). After hours, KR evacuated the residents out of the capital. They even executed those who thought to be unfit with the ideology of the regime. They were scholars, religious persons, high-ranking officials of Lon Nol regime. Between 1.7 and 2 million people died due to inhuman atrocious execution, malnutrition, forced overwork, hunger, and diseases. This death toll accounted to a quarter of the whole population.

1

The word Khmer Rouge will be written in abbreviation as KR hereafter.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia 2. RECONCILIATION The word reconciliation received more attentions in the context of civil wars and human rights violation which took place recently, especially in Rwanda, former Yugoslavia, South Africa and Cambodia. The concept of reconciliation is closely related to that of forgiveness which originated from religious aspect. It covers three main aspects of psychology, judiciary and politic.

In psychological aspect, reconciliation means the trauma healing process which helps bridging the relationship gap between the victims and the perpetrators. It affects the previous beliefs, motivations and attitudes. This could lead to improved, peaceful relation between the conflicted parties. It is a gradual and reciprocal process. Reconciliation is consisted of three consecutive phases: simple co-existence, advancing to democratic reciprocity and reconstructed bonds between the victims and perpetrators. The ultimate goal of reconciliation is that people learn to live peacefully together after a conflict. However, to achieve this goal, it needs strong social and political stability that can guarantee physical security for the victims and perpetrators. Therefore, it is extremely important to reestablish the victim-perpetrator relationships. Unlike forgiveness, reconciliation is an interpersonal process while forgiveness is an intrapersonal process. Most common definition of reconciliation indicates five key factors: a) decreased personal avoidance of the opponents, b) reduced anger and revenge feelings, c) capacity to take the perspective of opponents, d) open positive relationship toward opponents and (e) a rejection on violence (Borckers, 2011).

After the collapse of Khmer Rouge genocidal regime which took lives of 1.7 million people in 1979, Cambodia has bitterly struggled in rebuilding its nation, especially the reconciliation. The reconciliation focused on the national level one which reconciled between the former Khmer Rouge cadres and the victims who survive the regime by establishing ECCC to bring the top former KR leaders to justice. However, ECCC was severely criticized on its corruption and inefficient work. In fact, reconciliation has started since the last 25 years, but some approaches of the reconciliation were ineffective (Etcheson as cited in Ly, 2017). Much attention has been paid to national reconciliation on Khmer Rouge genocide while no attention has been paid to reconciliation at the local level where certain social issues occurred such as land conflict.

Cambodia has been struggling to with the past and the community level reconciliation is in the precarious process (McGrew, 2018). According to Transcultural Psychosocial Organization, the vast majority of Cambodian are traumatized by the Khmer Rouge and the wars following the regime and this mental illness went untreated. In spite of bitter memories, the survivors are moving forwards (Margolis, 2007).

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Recently, Cambodia economic growth has been progressing continuously, especially for the burgeoning middle class and the war has ended while many Cambodians continue to suffer from poverty, particularly in the rural areas, gross human rights violations, land grabs, freedom of expression and association clampdowns and politically motivated arrests and killings. It is a negative peace. For full reconciliation, restoration of relationships between victims and perpetrators (McGrew, 2018). The process of reconciliation in post-conflict countries such as Cambodia requires action on several levels. An important challenge on the political level is to combat poverty and corruption, which can fuel a sense of injustice and mistrust in society, potentially giving rise to violence. On the legal level, the establishment of the ECCC represents a first step in paying public tribute to the victims of the Khmer Rouge regime. To instill a sense of justice to the Cambodian people and to foster reconciliation, the tribunal’s work must be fair, transparent, and accessible to the public. Community-building on an individual basis is equally important for social healing and reconciliation in society. It is thus vital to further promote history teaching in schools. Rituals, ceremonies, and memorials help individuals to deal with the losses of the genocide and should be cultivated. Finally, concerted efforts should be made to increase the provision of therapeutic approaches focusing on trauma reprocessing and the activation of future-orientated resources. The integration of interventions such as the one developed by Staub et al. to target both healing and reconciliation in regular health care provision can be expected to have major benefits for social co-existence Cambodia (Borckers, 2011).

Apart from physical suffering like extreme overwork, starvation, torture, lack of healthcare and loss of lives, Cambodians also suffered from psychological harm from dehumanization, fear, survivor’s guilt, anger, and loss of trust (McGrew, 2018).

There were several victims and perpetrators of the KR aftermath (Ngarm, 2017) . The Khmer Rouge Tribunal is meant to deliver retributive at the national level while it failed to provide reconciliation for Cambodian people at their local communities (Gellman, 2008). It does not have the will to facilitate a meaningful national reconciliation. In 1999, Hun Sen said that “The national reconciliation in Cambodia, which was the source of peace and stability, had been fulfilled once and for all”. Nevertheless, Lederach argued that the point of reconciliation is to create time and a place within many different levels of the affected population, to address, integrate, and embrace the painful past and the necessary shared future as a means of dealing with the present”.

According to, since the signing of the Paris Peace Accord in 1991, a true national reconciliation has never existed. Cambodia only worked on reconciliation on political area, 58

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia especially using democratic process to settle the differences instead of armed violence (Ngarm, 2017). However, the social and emotional reconciliation remained untouched (Ngarm, 2017).

There are very few local and international organizations in Cambodia such as DC-Cam, Youth for Peace, Kdei Karuna Organization and Transcultural Psychological Organization (TPO) which work on post-conflict reconciliation. Their work on such issues is very limited. The ECCC has also helped spur the justice movement in Cambodia, not only in judicial, but also in non-judicial ways. Rothany Srun, a Cambodian American Senior Advisor to the International Center for Conciliation (ICfC) claims that although the ECCC cannot speak to the complexity of needs of all Cambodians, it has incited “other efforts in Cambodian civil society towards seeking justice for crimes committed during the KR regime. These efforts go beyond retributive forms of justice, but restorative forms of justice as well.” Nongovernmental organizations, including the DC-Cam, the Cambodian Human Rights Action Committee (CHRAC), Cambodian Human Rights and Development Organization (ADHOC), Khmer Institute for Democracy (KID), and Center for Social Development (CSD), among other organizations, were crucial in helping the ECCC gather complainant and Civil Party application forms because the VSS did not have adequate funding to supplement outreach activities at the beginning of the trials.

3. EXTRAORDINARY CHAMBERS IN THE COURT OF CAMBODIA2 After ruling the whole country for more than 3 years, the KR was toppled down and forced to the jungles by Vietnamese militia along with People’s Republic of Kampuchea3in 7 January, 1979. Immediately, the People’s Revolutionary Tribunal was established in the same year in August in an attempt to bring Pol Pot and Ieng Sary to justice4against their committing genocide crimes. This tribunal was critically criticized by the international community who regarded it as a show trial because no accused were present and served the sentence at all while King Sihanouk gave pardon to Ieng Sary in 1996. In 2007, Kaing Guek Eav, Nuon Chea, Ieng Sary, Ieng Thirith and Khieu Samphan were indicted by ECCC over violating basic rights of innocent Cambodian people, war crimes, and crime against humanity. The main objective of ECCC is to get justice done for the victims of Khmer Rouge regime. However, since the inception of this Khmer Rouge Tribunal it is questionable whether it effectively finds justice for the victims.

According to my interview with Khmer Rouge victims and former lower level Khmer Rouge cadres in Svay Rieng province, most of them have never heard of ECCC. For them, ECCC seems

2

ECCC Hereafter, People’s Republic of Kampuchea is abbreviated as PRK 4 During Khmer Rouge regime, Pol Pot was a prime minister and Ieng Sary was a foreign minister 3

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia unimportant. However, the presence and function of ECCC has been regarded as partially contributions to national reconciliation in terms of eliminating the culture of impunity and its commitment to improving the judicial system in the country. It is noted that the individual perception on justice made by ECCC can be different based on their knowledge and understandings. A hybrid court called Extraordinary Chambers in the Court of Cambodia has been established to bring the top ex Khmer Rouge leaders to justice. However, ECCC was heavily criticized of its independence, corruption and interference from the government led by Hun Sen. According to Ly (2017), there are some reconciliation process related to Khmer Rouge genocide regime. However, it is argued that some of those reconciliation process including K55 in 1980s are biased. Neither any authentic national reconciliation between the Khmer Rouge perpetrators and their victims nor local level healing has been done in Cambodia (Gellman, 2008).

4. EVERYDAY PEACE According to Ginty, everyday peace is the everyday practices the individuals and collectives used while navigating their way through life in a deeply divided society as a result ethnic or religious cleavages. It is a mechanism such as avoidance of subjects and constructive ambiguity (Ginty, 2015). To live in everyday peace, Cambodian people might use religion and ritual to reconcile their post conflict traumatized lives. Especially, Pchum Ben and Khmer New Year, the occasion Cambodian people spiritually connect and communicate their spirit with their deceased ones. According to Capeloto (2008), the Buddhism support the truth and national healing in the national reconciliation policy.

5. JUSTICE In Cambodia, the word justice is commonly hard to refined. From the victimsâ&#x20AC;&#x2122;perspective, justice is very vague. According to my interview, victims feel very hard to give the definition of the word justice. However, most of victims I interviewed do not pay much attention on this word even though they experienced the torture, forced labour, hunger, and the loss of their beloved family members. They seem to pay much attention on the current situation to live their life not the past. Actually, from the anger, they could have revenged against the perpetrators6 who tortured them or killed their beloved ones. However, Buddhist teaching is quite

Actually, K5 is a project initiated by Peopleâ&#x20AC;&#x2122;s Republic of Kampuchea which ruled the country after the collapse of Khmer Rouge. This project forced ordinary Cambodia to clear the forest, build roads and other labor work where some people lost their lives and severely injured due to landmines, malaria, armed attack etc.

6 Former lower level KR cadres 5

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia deep into their hearts. This allow them to calm themselves, embracing the Buddha’s word “Pea romngob dory kar min chong pea”. It is perceived that the sufferings happened during Khmer Rouge regime was the result of their previous kamar. So the better way to reconcile their sadness and sense of justice, they forgive the perpetrators by practising Buddhat teachings.

Usually, general public focused on the justice of the victims of Khmer Rouge both who were killed and who survived the regime. However, less attention have been paid on the justice of Khmer Rouge lower level cadres who actually are the victims of the regime as well.

5.1. Retributive justice The notions of merit and desert are central to retributive justice. This approach focuses on individual accountability and punishment of perpetrators; it can contribute to reconciliation in various ways. First, the fact that perpetrators sentenced to imprisonment after a criminal trial can no longer commit crimes increases the sense of security in society, which is an important condition for reconciliation. 14 Second, retributive justice responds to people’s “profound sense of moral equilibrium” and satisfies their need for perpetrators to pay for the harm they have done, thus helping to rebuild an individual sense of justice.

5.2. Restorative justice Restorative justice emphasizes the interests of the victims and is less concerned with imposing punishments on the offender. It includes non-criminal measures such as truth and reconciliation commissions, which are tasked with revealing all wrongdoings and human rights abuses in the context of a civil war or dictatorship. The aim is to establish the truth, to encourage the perpetrator to accept responsibility and express remorse, and to stress reconciliation without the intention of prosecuting or sentencing the perpetrators. This approach has been popularly implemented in South Africa, for example.

5.3. Reparations Reparations to individuals or communities who have suffered injustice include monetary compensation for material damage or physical injury. Reparations may also be made in the form of resources for economic development (e.g. building schools or supplying water wells) or community service by the wrongdoer. Although reparations cannot compensate all of the victim’s losses, they show that the wrongdoer feels remorse, which can promote forgiveness and reconciliation and help to restore victims’ sense of justice.16 Sites and practices of remembrance Museums and memorials document and acknowledge the crimes and human rights violations of former regimes. Typical examples are the Holocaust memorials and museums built in Germany and other countries to remind current and future generations of the crimes committed during the

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Nazi regime. Days of remembrance serve a similar purpose. Etcheson14 suggests that, if these says are properly designed, “they can bring a nation together as one in remembering shared trauma and loss.”14 Forgiveness and forgetting are often perceived to be similar concepts, and resistance to forgetting past atrocities may lower the readiness to forgive.17 Therefore, it seems important to offer alternative ways of remembering past atrocities. Both symbolic measures and days of remembrance can contribute to reconciliation by marking, acknowledging, and honouring the victims’ suffering.

5.4. Educational measures The way a state educates its young people about its own history reflects how the government and its institutions appraise and reappraise their history. According to Cole, the reform of history education can be understood as a sign of changed identity on the part of the state.18 The fact that a new regime does not deny past atrocities demonstrates that the state is not an accomplice to past crimes and that atrocities are unlikely to be repeated.19 Educating the next generation about history can also contribute to reconciliation by serving as an instrument of remembrance. The younger generation’s recognition of victims’ suffering through this form of commemoration may help the victims to reconcile.

5.5. Therapeutic measures Many people in postconflict settings suffer mental trauma as a result of their experiences.

In Cambodia, many are still strongly affected by the aftermath of the genocides. As Staub has described, reconciliation, forgiveness, and healing mutually support each other and an advance in each aspect can facilitate advances in the others. Therapies aimed at healing traumas in individuals or groups include traditional, medical, and public health approaches, as well as counseling, self-help groups, and (trauma-focused)

6. BUDDHISM AND RECONCILIATION After the collapse of Khmer Rouge regime, there were cases where the victims who survived the regime took revenge against the lower level cadres who used to be the perpetrators.

There are certain cases where few perpetrators were beaten to death by the villagers in the communities while most of them fled from their hometown to other provinces or areas for personal security reasons. They dare not to return home and live their lives in other villages, hiding their personal identities. According to my interviews with the villagers, some former lower level cadres decided to return to their home after they become old and sickened. They wanted to

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia spend their late life in their home village although they are not quite sure of their personal security7.

Actually, in order to integrate and socialize themselves in the communities, they transform themselves by learning about Buddhist philosophy and decided to serve the communities as Acha8r in various different Buddhism practice. Their roles as the Achar played very important roles in the society. Besides, embracing Buddhaâ&#x20AC;&#x2122;s teachings also help them peaceful and calm as sometimes they have nightmare about their past acts of torture or killing innocent people against their will. They feel regret so much, but there is no choice for them at all.

After Khmer Rouge regime was toppled down in 1979, most victims who survive return to their hometown to meet their family members. However, most lower level Khmer Rouge cadres dared not to return to their hometown for fear of their insecurity concern. There are cases of taking revenges of the people against them. This is because of the anger of the people whose beloved family members were tortured or killed by those cadres. Few were beaten dead by the mass.

During Khmer Rouge regime, lower level cadres received the orders from the higher echelons or senior officials to torture or even kill the innocent population across the country. With the order, they have to accomplish the undeniable task. In case, they denied the orders they would have been killed on the charge of betraying Angkar. It is said that few cases of over-undertaking the task assigned happen during Khmer Rouge regime because the lower level cadres wanted to please their senior officials. For example, they are ordered just to torture the victims, but they even killed them. However, such cases are very few.

Cambodian people might use religion and ritual to reconcile their post conflict traumatized lives. Especially, Pchum Ben and Khmer New Year, the occasion Cambodian people spiritually connect and communicate their spirit with their deceased ones. According to Capeloto (2008), the Buddhism support the truth and national healing in the national reconciliation policy.

According to my interview with former KR cadres and the victims who survived the regime, most of them reconcile themselves with Buddhist rituals. For the victims, on Pchum Ben and Khmer New Year, they usually go to pagoda to offer foods to the Buddhist monks, dedicating to the spirits of their beloved ones who were killed in KR regime. By doing so, they feel relief and

7

General Cambodian population usually regard those who survive KR regime as the victims only while the former lower level KR cadres were usually regarded as perpetrators. Actually, those former lower level KR cadres were also victims. During KR regime, they just followed the orders from their senior high ranking official called Angkar.

If they did not follow those orders, they would have been killed.

8

A master of ceremonies in Buddhist practice in Cambodia.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia calm. For former KR lower level cadres, they also reconcile themselves by using Buddhist way of practising, offering foods to Buddhist monks at the pagoda and even serving as Achar to forget about their past deeds which were forced to do by their senior official of KR.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES

ACT. (2014). Peace Research Report 2013-2014. Phnom Penh: Alliance for Conflict Transformation .

American Institutes for Research. (2008). Assessing Marginalization of Cham Muslim Communities in Cambodia. USAID. Bockers, E., Stammel, N., & Knaevelsrud, C. (2011). Reconciliation in Cambodia: thirty years after the terror of the Khmer Rouge regime. Torture, 21(2), 71-83.

Capeloto, T. V. (2008). Reconciliation in the Wake of Tragedy: Cambodia's Extraordinary Chambers Undermines the Cambodian Constitution. Pacific Rim Law & Policy Journal Association, 17(1).

Funk, N. C. (2012). Building on what's already there: Valuing the local in international peacebuilding.

International Journal, 67(2).

Gellman, M. (2008). No justice, No peace? National Reconciliation and Local Conflict Resolution in Cambodia. Asian Perspective, 32(2), 37-57.

Ginty, R. M. (2014). Everyday peace: Bottom-up and Local Agency in Conflict Affected Societies.

Security Dialogue, 45(6), 548-564.

Ginty, R. M. (2015). Where is the local? Critical Localism and Peacebuilding. Third World Quartely, 36(5), 840-856. Retrieved from http://dx.doi.org/10.1080/01436597.2015.1045482 Ginty, R. M., & Polanska, M. (2015). When the Local Meets the International: From Resilience to Global Governance. In M. Roth, C. Ulbert, & T. Debiel, Global Trands 2015: Prospects for World Society (pp. 193-208). Bonn: Development and Peace Foundation.

Luco, F. (2002). Management of local conflicts in Cambodia: an anthropoligical approach to traditional and new practices. Phnom Penh: UNESCO. Ly, S. (2017). Reconciliation Process in Cambodia: 1979-2007. Phnom Penh: DC-Cam. Margolis, E. (2007). Trauma and the Trials of Reconciliation in Cambodia. Georgetown Journal of International Affairs, 8(2), 153-161.

McGrew, L. (2018). Victims and Perpetrators in Cambodia: Communities Moving Towards Reconciliation on a Rocky Road. In Jenkins, Reconciliation in Conflict-Affected Communities.

Springer Nature Singapore Pte Ltd. Ngarm, S. P. (2017). Cambodia Reconciliation: A Reflection on Justice and Reconciliation Issues and Challenges for the past 25 Years Post War - Peace and Reconciliation. Siem Reap, Cambodia: Center for Peace and Conflict Studies.

Tek, F. L. (2011). Justice at the Extraordinary Chambers in the Court of Cambodia?. Peace Review, 23(4), 431-437.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

A NEW PARADIGM OF REGULATION OF MASSIVE OPEN ONLINE COURSES (MOOCs) IN HIGHER EDUCATION IN INDONESIA: FROM DISRUPTIVE INNOVATION TO SUSTAINING INNOVATION Diah Pawestri Maharani, SH., M.H. Airin Liemanto, SH., LL.M.

ABSTRACT Massive Online Open Courses (MOOCs) is one of the disruptive innovation phenomena that is capable for destroying conventional education methods. The importance of this research is to offer solutions about shift educational paradigm and formulate an anticipatory policy towards the phenomenon of disruptive innovation so that it becomes sustaining innovation. The results of this study indicate that with the various constraints in the education system in Indonesia, MOOCs have become an alternative in improving the quality and equity of education. The education paradigm in Indonesia is currently undergoing a transition process. The old education paradigm which focuses on the role of lecturers conducted in the classroom has slowly shifted into a learning process that no longer describes face-to-face meetings in the classroom. The Indonesian government has issued several laws and regulations in regulating the Indonesian Online Learning System. However, this policy still needs a lot of improvements to change MOOCS from disruptive innovation to sustaining innovation, namely determining a new direction of paradigm of MOOCs regulation in Indonesia, improving cooperation among stakeholders, improving infrastructure for supporting MOOCs system, and improving culture of digital literacy.

Keywords: paradigm, Massive Online Open Courses, disruptive innovation, sustaining innovation, higher education INTRODUCTION Massive Online Open Courses (MOOCs) are a phenomenon occurring in higher education sector, and it indicates growing number of open courses, online-based courses, and other changes

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia during globalisation era.1 The aim of MOOCs learning system is to enable unlimited participation in education accessible on webs. In addition to features like videos, reading materials, and problem-based discussions, MOOCs also provide forums for interactive users, which helps build communities for students, lecturers, and teaching assistants. MOOCs are the latest development in e Learning.2 The theory of disruptive innovation elaborates how innovation can ruin conventional markets that have started to exist earlier by sacrificing incumbents.3 This may result in negative impacts on the existing pattern, where the existence of technological innovation has shaken the current pattern and it has even lured ‘this old way’ to bankruptcy.4 In higher education sector, a question whether this innovation of online learning like MOOCs is a threat to current higher education system is raised.5 MOOCs are a promising and increasingly popular technological innovation in higher education scope, and they bring hope to conventional education known with its complex bureaucracy, ever-changing curriculum, rigid regulation in the systems of education, and even poor human resources and skills. MOOCs evenly distribute learning opportunities in societies, especially for those planning to continue to universities. This new method is certainly different from the patterns and structures that conventional universities have clung on to for so long, the pattern and structures that tend to be closed and to limit the number of students.

Furthermore, the complexity of bureaucracy and high cost of education in universities have often become a burden for students. In MOOCs, students can fit themselves to classes they are interested in or this method even allows them to explore what they need without bothering with bad scores or sessions wasted. In other words, this seems to give unlimited opportunities to them willing to study throughout their life, even to those having earned their university degrees, currently studying in universities, or retired.6

1

Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017, p. 238.

2 Silvana, Hana and Fajar, Yuniar. “User Analysis Of Massive Open Online Courses (Moocs) Based E-Learning System To Ensure Equal Access To Education At Higher Education.” Jurnal Educational Technology, Edutech, Vol 15 No 2, 2016.

3 Budhijanto, Danrivanto. Hukum Telekomunikasi, Penyiaran dan Teknologi Informasi (Regulasi dan Konvergensi). Refika Aditama, Bandung, 2010, p. 1.

4 Christensen, Clayton M. The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail.

Harvard Business School Press, Cambridge, Massachusetts, 1997, p. 5.

5 Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017, p. 238.

6 Anonimous. “MOOCs: Apakah Itu? dan Mengapa Anda Harus Tertarik?”, 11 November 2017, https://www.easyuni.co.id/advice/moocs-apakah-itu-dan-mengapa-anda-harus-tertarik-651/. Accessed 23 March 2018.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia To date, the most common issue in the system brought by the MOOCs is that lots of universities and companies do not officially recognise their courses since they are not validated or regulated. To give response to this issue, Coursera, one of MOOCs, offers a certified program verified at affordable cost in collaboration with accredited universities. Moreover, this institution also offers online courses based on e-learning and peer-to-peer learning (private tuitions) principles and offers bachelor degree programs accredited by accreditation commission called Distance and Education Training Council.7 To improve the quality of online learning, several elite universities provide online courses through course platforms such as edX, Akademi Khan, and Duolingo. Other start-ups like Coursera and Udacity are also in partnership with several prestigious campuses to provide freeof-charge and paid courses in small numbers for certification. Big actors such as Pearson and Google also plan to take part in education sector in similar way.8 However, such a high innovation reflected in MOOCs has potential to spoil traditional methods of education; learning activities will completely change. Classrooms will evolve through digital learning patterns that give learning experiences in a more creative, participative, varied way, and more thoroughly. Learning evolution offered by MOOCs will raise a critical question: “how will universities and lecturers play their role in the future?”9 how will regulations concerning education in Indonesia prepare proper learning systems in order to welcome the MOOCs with open arms according to a proper set of regulations?

Higher education must anticipate transformation in digital era and the market needs where there is a tendency that labour market prefers skilled human resources to university degrees.10 This research is aimed to present a change of paradigm by explaining the relationship between technological innovation in the form of MOOCs and regulations of higher education in Indonesia, and to find out the anticipation to convert this disruptive technology into sustaining technology that brings benefits to the systems of higher education in Indonesia.

Anonimous. “MOOCs: Apakah Itu? dan Mengapa Anda Harus Tertarik?”, 11 November 2017, https://www.easyuni.co.id/advice/moocs-apakah-itu-dan-mengapa-anda-harus-tertarik-651/. Accessed 23 March 2018.

8 Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017, p. 238.

9 Aji, Kristina Anugerah. “Pemanfaatan Massive Open Online Courses: Orangtua Sebagai Pembimbing Anak Usia Dini Seni Berbahasa Melalui Kuliah Daring”. Prosiding Temu Ilmiah Nasional Guru (Ting), p. vi.

10 Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017, p. 240.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia I.

RESEARCH METHOD This research employed socio-legal method aiming to combine several aspects of fields:

social and legal studies into a distinct approach. The research stages involve: a.

Identifying legal and social facts that will be solved concerning MOOCs in

anticipation of disruptive technology in universities in Indonesia. b.

Collecting legal materials that were relevant to non-legal materials related with

the study of policy of MOOCs as to anticipate the presence of disruptive innovation in universities in Indonesia. c.

Analysing issues according to the data collected.

d.

Drawing conclusions in the form of argumentation that answers the problems

e.

Providing prescriptions according to argumentation developed in conclusions.

This research employed statute and conceptual approaches. Furthermore, primary legal materials consisting of laws and regulations were collected based on inventory and categorisation, while secondary materials were collected in card system. Both the inventoried primary and secondary data were grouped and studied based on statute approach to obtain the picture of synchronisation of all legal materials, followed by systematisation and classification to look into and compare the theories and legal principles contributed by experts. The analysis of the legal materials was conducted deductively and based on extensive analytical method.

II.

RESULTS AND DISCUSSION A.

MOOCs and Disruptive Innovation in Higher Education System

MOOCs are a model of education with advantages. First, MOOCs are massive; they have infinite scalability principle, meaning the number of participants can reach to thousands in each lecture. This is considered common since there are no hindrances that limit the number. This model can come as a solution when it is related to population in and education distribution throughout Indonesia.

Another benefit is that MOOCs are open, where there are no specific requirements to join them but computer, mobile devices, and Internet to help participants access MOOCs. Some MOOCs are offered for free while others only charge participants for marking their results and certificate; particular payment is required in some other MOOCs. In several platforms, the openness can be seen from opportunities allowing institutions to use the platforms to develop their own MOOCs, or freedom is given to allow them to manage intellectual property rights to the materials provided by the institutions through MOOCs.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Nowadays, there are many platforms working in association with public and private universities to run online classes as seen in regular classes. For example, HarukaEdu enables the participants to earn their bachelor degrees from universities and based on the majors they pick.

Thirdly, MOOCs are given online. In their initial development, MOOCs offer online access to all activities provided. However, in the development that follows, several universities used MOOCs to support conventional lectures. Universities provide materials for MOOCs through particular platforms, such as lecture recording, reading materials, and quizzes that students can access. The online classes are combined with face-to-face sessions in a classroom, so that students still have their chance to discuss in a group, to conduct experiments or to take quizzes to find out the progress of the students. Furthermore, courses are the criteria of MOOCs, where lectures held

by MOOCs are managed as a whole lecture. Designed based on the objective of study, the lecture also requires students to read materials as recommended, follow explanation given by a lecturer, take quizzes, and do assignment. Participants are also encouraged to be involved in online forum discussions. When participants finish their courses, certificate is given.11 To sum up, MOOCs are online-based education; learning process takes place online on webs, and they are open and massive.

This has brought to a question: will the innovation of MOOCs disrupt conventional education? When businesses weren’t supported by advanced technologies like they are today, during development in businesses, business actors had often been in conflict with bureaucracies, governments’ arrogance, rigid regulation, irrelevant investment systems, or poor resources and skills. It is inevitable that technology is present to add efficiency to those drawbacks. Back in 1997, Clayton M. Christensen introduced the term “disruptive technology”. Christensen divided technology into two categories, comprising sustaining technology and disruptive technology.

Christensen explained there were three central dilemmas in the use of technology:12 “The Innovator’s Dilemma has three main findings: 1). Sustaining technologies are different than disruptive technologies, 2) the pace of progress often precedes the market’s awareness of the need, 3) Structures of companies colour the choices and investments they make.”

Educause. “Massive Open Online Course (MOOC)”, 2015. http://www.educause.edu/library/massive-openonline-course-mooc. Accessed 27 August 2018.

12 Christensen, Clayton M. The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail.

Harvard Business School Press, Cambridge, Massachusetts, 1997, p. 5.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Sustaining technology is defined as a gradual improvement of an established technology.

In this criterion, technological development is prepared by listening to consumers, followed by the creation of products that meet the needs of the future by business actors.13 Disruptive technology, in contrast, is a condition not anticipated by companies or business actors. Therefore, the birth of a new technology can disrupt or even ruin traditional systems in a company.14 In other words, disruptive technology is defined as a process of innovating products or services to develop a new market different from the conventional one, spoiling and threatening the existing products.

Furthermore, Christensen provides five principles of disruptive technologies as follows:15 1.

Companies depend on customers and investors for resources. Customers drive

internal decisionmaking because companies are resource-dependent.

2.

Small markets don’t solve the growth needs of large companies. Large

companies are not interested in small emerging markets, and they wait too long.

3.

Markets that don’t exist cannot be analyzed.

4.

An organization’s capabilities define its disabilities.

5.

Technology supply may NOT equal market demand.

The phenomenon of disruptive technology is obvious in the case of Nokia back in 2010, a well-known market leader above all hand phone products. Nokia, however, experienced a fall in its sales, following vast development of Android Operating System introduced in 2009. The falling sales of Nokia was also in line with growing development of iphone from Apple in 2007 that was widely accepted by some consumers due to its more interesting features and applications.16 The example given indicates that Nokia slowly responded to the change and threat of new technologies growing at no time. The advanced technologies like OS Android overtaking OS Symbian by Nokia show that the market taste was easily changed due to the birth of a new technology Nokia did not have despite the fact that Nokia had been accepted earlier Some other examples as categorised by Claytone M. Christensen into disruptive technology involve personal computer replacing mainframe and mini computer, leading IBM to

Crooker, Karen, Baldwin, Dirk and Chalasani, Suresh. “RFID Technology as Sustaining or Disruptive Innovation: Applications in the Healthcare Industry.” European Journal of Scientific Research, Vol. 37 No. 1, 2009, p. 162-163.

14 Christensen, Clayton M. The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail.

Harvard Business School Press, Cambridge, Massachusetts, 1997, p. 12.

15 Christensen, Clayton M. The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail.

Harvard Business School Press, Cambridge, Massachusetts, 1997, p. xxvii-xxviii.

16 Bouwman, Harry, et al. “How Nokia Failed to Nail the Smartphone Market”, 25th European Regional Conference of the International Telecommunications Society (ITS), Brussels, Belgium, 22-25 June 2014, p. 1-2.

13

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia bankruptcy;17 Cellular Phone started to replace Fixed Line Telephone, forcing PT. Telkom Indonesia to fix its business model with TIMES (Telecommunication, Information, Media, Edutainment and Services), and many more.18 In the field of higher education, MOOCs can rapidly and massively disrupt conventional education system. These days, job markets tend to prioritise competence in fields over university degrees. When several global networks and private job markets have started to welcome the system of MOOCs and are more focused on students’ skills instead of their degrees, MOOCs can be taken as a threat to conventional universities, or their existence can even replace universities.19 Therefore, universities must reposition the teaching systems by using and/or introduce MOOCs. The existence of MOOCs can affect the management of human resources in colleges and universities, where the needs of teaching staff will be minimised and adjusted to accreditation, while the needs for lectures can be met through MOOCs. Moreover, the existence of MOOCs will affect the role of lecturers and the behaviour of the students in teaching and learning process taking place in a classroom, where students will probably prefer being taught by world class professors through MOOCs to lecturers or teaching staff with qualifications left further behind from those of MOOCs. Colleges and universities must anticipate, adapt, and adopt MOOCs to help manage the institutions to survive in this ever-changing era.20 B.

Change in Paradigm in managing MOOCs existing today in Regulation of

Higher Education in Indonesia MOOCs come with new systems that keep developing in Indonesia. To date, education system in Indonesia has been mainly focused on the role of lectures dominant in classroom activities. This is deemed old paradigm where lecturers give lectures in many ways in universities.21 As seen in Table 1, there are principal differences between the paradigm of education system in conventional universities and that in modern universities.

Bouwman, Harry, et al. “How Nokia Failed to Nail the Smartphone Market”, 25th European Regional Conference of the International Telecommunications Society (ITS), Brussels, Belgium, 22-25 June 2014, p. 1-2.

18 Telcom Group. “Suara Telkom ITC Indonesia”. http://mastel.id/telkom-group/. Accessed 2 April 2018.

19 Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017, p. 285.

20 Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017, p. 285.

21 Darmayanti, Tri, Setiani, Made Yudhi, and Oetojo, Boedhi. “E-Learning pada Pendidikan Jarak Jauh: Konsep yang Mengubah Metode Pembelajaran di Perguruan Tinggi di Indonesia” Jurnal Pendidikan Terbuka dan Jarak Jauh, Volume 8, Nomor 2, September 2007, p. 100.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia TABLE 1. Differences between old paradigm and new paradigm in higher education22 Old Paradigm in Higher Education

New Paradigm in Higher Education

Subjects are fixed

Subjects can be chosen based on interest

Registration and academic activities highly

Registration and academic activities open

depend on academic calendar

throughout the year

Universities are located at certain places

Universities do not exist physically

Degree earning marks the end of the course

Learning takes a lifetime

Age ranges from 18 to 25 years old

Age starts at 18 to a lifetime

It depends on activities running in the

It relies on how market sees it

institutions The products are in single form

Information obtained can be reused

Students serve as objects

Students are as consumers

Teaching and learning take place in

Class activities are not restricted to

classrooms

classrooms

Multicultural

Global

The concept is a whole big unity

The concept is small and separated

Single discipline

Multi-discipline

Focused on institution

Focused on market

Funded by government

Financially supported by public funds

Technology is costly investment

Technology is as distinguishing element

The new paradigm no longer requires any face-to-face sessions, although social interaction is still maintained, and this paradigm has been welcomed widely, affecting human life.23 With the geographical condition of Indonesia consisting of 16,056 islands and 4,500 universities, Intan Ahmad argues that online learning like MOOCs are highly relevant to apply in universities.24

Darmayanti, Tri, Setiani, Made Yudhi, and Oetojo, Boedhi. “E-Learning pada Pendidikan Jarak Jauh: Konsep yang Mengubah Metode Pembelajaran di Perguruan Tinggi di Indonesia” Jurnal Pendidikan Terbuka dan Jarak Jauh, Volume 8, Nomor 2, September 2007, p. 101.

23 Darmayanti, Tri, Setiani, Made Yudhi, and Oetojo, Boedhi. “E-Learning pada Pendidikan Jarak Jauh: Konsep yang Mengubah Metode Pembelajaran di Perguruan Tinggi di Indonesia” Jurnal Pendidikan Terbuka dan Jarak Jauh, Volume 8, Nomor 2, September 2007, p. 99.

24 Direktorat Jenderal Pembelajaran dan Kemahasiswaan. “MOOCs Forum for Network Development”, 02 November 2017. http://belmawa.ristekdikti.go.id/2017/11/02/moocs-forum-for-network-development/. Accessed 30 August 2018.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Ministry of Research, Technology, and Higher Education have tried to develop long distance learning by adopting the concept of MOOCs. This model, commonly called as HYLITE or Hybrid Learning in Teacher Education (HYLITE) and SPADA or online learning in Indonesia.25 SPADA Indonesia has been conducted by 51 organising universities and 116 partner universities involving 6,927 students. SPADA Indonesia had been offering 253 online courses till 2007, 147 open courses and 172 open contents. Organising SPADA is fundamentally intended to improve access to qualified higher education through the implementation of MOOCs as credit transfer improvement program.26 The growing SPADA in Indonesia is inextricable from vision and mission achieved to improve the quality and quantity of education system in Indonesia. The Government has passed the legislation to better help implement the system of SPADA. The legislation consists of: 1.

Law Number 20 of 2003 concerning National Education System

Article 1 point 15 of Law concerning National Education System defines distance education as an education whose students are separate from their teachers and this education involves several learning resources through communication technology, information, and other media. It involves members of the public willing to grow their personal potential via learning process available in particular education path, time period, and types of education and having registered to the education program or certain courses.27 Furthermore, the concept of education in Indonesia is performed as a systematic unity with open system and multi-definitions.28 Open system is defined as an education held with flexibility of options and time in multi entry-multi exit system. The students can study while working or they can take study programs with different types and paths of education in integrated and sustainable way through either face-to-face sessions or long distance learning method. Multidefinitions education is defined as an educational process that is focused more on culture-based nurture, character, personality, and skill building needed in life.29

Direktorat Jenderal Pembelajaran dan Kemahasiswaan. “MOOCs Forum for Network Development”, 02 November 2017. http://belmawa.ristekdikti.go.id/2017/11/02/moocs-forum-for-network-development/. Accessed 30 August 2018.

26 Direktorat Jenderal Pembelajaran dan Kemahasiswaan. “MOOCs Forum for Network Development”, 02 November 2017. http://belmawa.ristekdikti.go.id/2017/11/02/moocs-forum-for-network-development/. Accessed 30 August 2018.

27 Article 1 Point 4 of Law Number 20 of 2003 concerning National Education System 28 Article 4 Paragraph (2) of Law Number 20 of 2003 concerning National Education System 29 Article 4 Paragraph (2) of Law Number 20 of 2003 concerning National Education System 25

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Open system is divided into two: (a) face-to-face and (b) long distance.30 Long distance education is held based on paths, stages, and education types, aimed to provide education services to those who cannot attend regular classes or cannot attend face-to-face sessions.31Distance education can involve correspondence, radio, audio/video, TV, and/or computer-based learning, while the mode of the implementation of the education involves single mode or dual mode.

Moreover, the scope of distance education involves subject-based education and/or field of studybased education.32 Overall distance education requires infrastructure, learning services, and assessment system guaranteeing the quality of graduates based on the national standard of education.33 2.

Law Number 12 of 2012 concerning Higher Education

The provisions of distance education in Law concerning Higher Education are slightly different from the Article in the Law concerning National Education System. Specifically, the principles of distance education is formulated in Law concerning Higher Education as follows:34 1.

Access

Desire to improve access to education has become the main ground to hold long distance learning. Based on this paradigm of access, the system of long distance learning applies the principle of industrialisation, namely massive education to gain economic benefits.

2.

Distribution

The principles of fairness and equality in rights to gain opportunities to take part in the process of education, not restricted to certain people and free from barriers with flexible space, time, and socio-economy to open access to education have made long distance learning interesting for people from all walks of life. People have their opportunities to receive quality education without having to leave their family, home, job, and their career.

3.

Quality

In terms of characteristics, learning process in long distance learning system, curricula, teaching materials, learning process, and exam materials are usually presented in standard form to be distributed across space and time by involving communication and information and communication technology. To help achieve quality that is up to the standard, long distance

30

Article 13 Paragraph (2) of Law Number 20 of 2003 concerning National Education System Article 31 Paragraph (1) and (2) of Law Number 20 of 2003 concerning National Education System 32 Article 31 paragraph (3) of Law Number 20 of 2003 concerning National Education System 33 Article 3 Paragraph (3) of Law Number 20 of 2003 concerning National Education System 34 Yerusalem, Muhammad Rozi, Rochim, Adian Fatur and Martono, Kurniawan Teguh. â&#x20AC;&#x153;Desain dan Implementasi Sistem Pembelajaran Jarak Jauh di Program Studi Sistem Komputer.â&#x20AC;? Jurnal Teknologi dan Sistem Komputer, Vol.3, No.4, Oktober 2015, p. 483-484.

31

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia learning program heavily relies on the use of shared learning facilities according to partnership among institutions.

3.

Regulation of Minister of Education and Culture Number 109 of 2013

concerning Distance Education in Higher Education The Regulation of Minister of Education and Culture Number 109 of 2013 concerning Distance Education in Higher Education allows education organisers in Indonesia to conduct education through long distance universities by using information technology. MOOCs or Indonesian Online Learning System (SPADA) can be conducted within the area of field of study as long as there are 50% of subjects or more in a study program each year.35 Furthermore, learning outcomes and academic program in long distance learning, equal to the system in face-to-face sessions, are conducted by:36 a.

Using learning mode where students and teachers are not in the same place;

b.

Encouraging independent, structured, measured, and guided learning by utilising

varied learning resources; c.

Using learning resources located in where the students are or resources separate

in space from students; d.

Utilising electronic learning media combined with other learning resources in

varied forms, formats, media, and sources; e.

Utilising information and communication technology-based learning media as

learning resources accessible at anytime; and f. Giving emphasis on interaction of information and communication technology-based learning but still enabling limited face-to-face sessions.

Furthermore, long distance learning is held by universities that have fulfilled certain requirement set by Directorate General. In terms of funding, long distance learning is independently regulated and set by universities that organise long distance learning, in which the cost covers investment, non-personnel and personnel operational cost and development cost.37 Assuring the quality of those responsible to organise long distance learning is performed based on the characteristics of long distance learning program. Study program given through the

35

Article 4 Paragraph (3) and (4) of the Regulation of Minister of Education and Culture Number 109 of 2013 concerning Distance Education in Higher Education.

36 Article 6 Paragraph (1) and (2) of the Regulation of Minister of Education and Culture Number 109 of 2013 concerning Distance Education in Higher Education.

37 Article 10 of the Regulation of Minister of Education and Culture Number 109 of 2013 concerning Distance Education in Higher Education.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia program must be accredited by accreditation authority recognised by the government. Moreover, long distance learning must develop and perform internal quality assurance system.38 4.

Regulation of Minister of Research, Technology, and Higher Education

Number 44 of 2015 concerning National Standard of Higher Education Intensive long distance learning system utilises information and communication technology for all educational and learning activities, comprising setting, procurement and distribution/uploading learning resources, learning process through tutorial, practices, and exams; administration and registration without overlooking learning and face-to-face sessions given in limited amount, or known as hybrid/blended learning.39 Conducting long distance learning must comply with National Standard of Education consisting of:40 a.

Competence standard of graduates

b.

Standard of learning contents

c.

Standard of learning process

d.

Standard of learning assessment

e.

Standard of lecturers and education staff

f.

Standard of learning facilities and infrastructure

g.

Standard of learning management

h.

Standard of learning program funding

C.

The future of MOOCs and Higher Learning in Indonesia

Developing the nationâ&#x20AC;&#x2122;s intellectual life is one of the goals Indonesia holds. MOOCs can be one of the platforms appropriate to improve the quality and quantity of higher education in Indonesia. However, in reference to the trends in Indonesia, MOOCs are potential to disrupt conventional higher education. This is because the policy of MOOCs in Indonesia is intended for learning courses given massively and for pedagogical innovation. The government also tries to develop MOOCs for public interests, not for business. Therefore, it is essential to anticipate that the implementation of MOOCs in Indonesia does not disrupt the systems of conventional higher education. There are four aspects as key elements as follows:

38

Article 17 of the Regulation of Minister of Education and Culture Number 109 of 2013 concerning Distance Education in Higher Education.

39 Paulina Pannen, et.al. Panduan Pelaksanaan PJJ 2016. Direktorat Jenderal Pembelajaran dan Kemahasiswaan Kementerian Riset, Teknologi, dan Pendidikan Tinggi, Jakarta, 2016, p. 14.

40 Paulina Pannen, et.al. Panduan Pelaksanaan PJJ 2016. Direktorat Jenderal Pembelajaran dan Kemahasiswaan Kementerian Riset, Teknologi, dan Pendidikan Tinggi, Jakarta, 2016, p. 14.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia 1.

New Direction of Paradigm of Policy of MOOCs in Indonesia

a)

Curricula

Not all fields of science are applicable for users of MOOCs system. Sebastian Thrun argues that MOOCs may be more appropriate for training instead of academic education.41 Therefore, as an initial pilot project, MOOCs in Indonesia are mainly for the following areas: (a) skills/professional/vocation; and (b) corporate training.

Instructional design also needs to be taken into account, especially concerning how the participants of MOOCs study by integrating delivery of systematic learning model and involvement of the participants.42 Instructional design also comprises methods to deliver feedback and to assess performance of the participants. Participantsâ&#x20AC;&#x2122; performance can be assessed by conducting quizzes, exams, and practices such as written assignment or other learning projects. In terms of practices, learning transfer to work environment can be assessed through observation by practitioners who excel at their particular fields by employing certain instruments. The training program with MOOCs is completed when participants have accomplished all learning credits as set and participants will get their certificate upon graduation.43 The quality of learning design or pedagogy directly affects the participants of MOOCs. Poorly designed training will hamper participants from success. In most training programs, it can cause the participants to drop out of the program and may discourage them from continuing their further studies. Therefore, academic curricula of MOOCs must be under constant evaluation and innovatively improved. b)

Participants of MOOCs

Government needs to regulate policy to limit the participants and prioritise the following: 1)

Participants not able to attend regular classes because of their career or long

distance.

2)

Participants incapable of continuing their education to conventional universities

due to their age.

3)

Participants willing to learn more skills to support their knowledge or profession.

41

Ronkowitz, Kenneth and Ronkowitz, Lynnette Condro. MOOCs: Evolution and Revolution in Macro-Level Learning through Massive Open Online Courses (MOOCs): Strategies and Predictions for the Future, Elspeth McKay dan John Lenarcic (Eds). Information Science Reference, USA, 2015, p. 205 42 Bagley, Carole A. and Weisenford, Janet. What is Best for the Learner? Are MOOCs the Answer? in MacroLevel Learning through Massive Open Online Courses (MOOCs): Strategies and Predictions for the Future, Elspeth McKay dan John Lenarcic (Eds). Information Science Reference, USA, 2015, p. 148.

43 Bagley, Carole A. and Weisenford, Janet. What is Best for the Learner? Are MOOCs the Answer? in MacroLevel Learning through Massive Open Online Courses (MOOCs): Strategies and Predictions for the Future, Elspeth McKay dan John Lenarcic (Eds). Information Science Reference, USA, 2015, p. 150.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia 4)

Foreign participants

2.

Development of partnership with stakeholders

Development of proper management is essential to attract more participants. The role of stakeholders is also mainly needed. Government working together with related stakeholders will help widen the network of institutions and access to education, reduce cost, to be part of innovation in education, and improve the quality of education in Indonesia. Several key stakeholders responsible for developing MOOCs involve:44 a)

Universities or other educational institutions, functioning to:

1)

support the development of MOOC

2)

offering platforms for MOOCs in the form of new pedagogical innovation

3)

providing teaching staff to develop, share, and deliver MOOCs and online

learning and teaching.

4)

Developing institutional leadership in sectors of education, professional staff

development, technological support, research and evaluation. b)

Members of public playing a role in changing paradigm of education from

conventional to digital-based education c)

Private companies playing a role in transferring knowledge and innovation

d)

Non-governmental organisations serving as a connecting bridge for members of

public, expected to encourage the development of MOOCs. e)

Professional training institutions and other social partners with role in promoting

MOOCs intended for innovation and development.

3.

Improvement of infrastructure underpinning MOOCs system

Internet is one of elements of infrastructure needed to help implement MOOCs. Based on the survey result conducted in association with Association of Indonesian Internet Service Providers (APJII), to April 2019, there had been 171.17 million people (64.8%) out of the total population of Indonesia accounting for 264 millions connected to Internet.45 However, the level of penetration of Internet in Indonesia is not evenly distributed. Most of Internet users are still centralised in East Java, accounting for 55%, while the contribution of Internet users in Sumatera

44

Patru, Mariana and Balaji, Venkataraman (Eds). Making Sense of MOOCs: A Guide for Policy-Makers in Developing Countries. The United Nations Educational, Scientific and Cultural Organization (UNESCO), Paris, 2016, p. 64-65.

45 Pratomo, Yudha. "APJII: Jumlah Pengguna Internet di Indonesia Tembus 171 Juta Jiwa", 16 May 2019. https://tekno.kompas.com/read/2019/05/16/03260037/apjii-jumlah-pengguna-internet-di-indonesia-tembus-171juta-jiwa. Accessed 23 July 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia represented 21%, Sulawesi-Maluku-Papua was 10% and Kalimantan was 9%, and the smallest figure was in Bali and Nusa Tenggara (5%).46 Furthermore, Internet connection in Indonesia is still left behind from Asian countries; the internet connection in Indonesia ranked number 112 globally with downloading speed 17.02 Mbps per May 2019.47 This condition serves as barrier to implementing MOOCs particularly in villages that need more quality education compared to urban areas.

In addition to Internet, implementing MOOCs will require computers or tablets allowing participants to access materials. Websites should be easily accessed and should allow participants to take part in the sites. Therefore, improvement of information technology infrastructure, especially related with facilities and infrastructure, is needed along with the implementation of MOOCs. 4.

Improvement of Culture and Digital Literacy

The people in Indonesia have very low digital literacy level. Most of Indonesians use Internet to access social media, while the Internet used in education is not common in the country.48 Therefore, the government and related stakeholders play their role in developing the culture of digital literacy aimed to raise the quality and quantity of education in Indonesia. The following are the reasons why digital literacy needs improvement: a.

to prepare young generation to be more critical and wiser in using digital

technology to gain unlimited knowledge. b.

to develop digital literacy to help give both students and schools to contribute

more diverse knowledge and experiences, where the learning method is getting more relevant and properly directed.

CONCLUSIONS The process of transition in paradigm of education in Indonesia is underway. Old paradigm more emphasised on the role of lecturers in a classroom has slowly shifted to learning atmosphere no longer representing face-to-face sessions in a classroom. The Ministry of Research, Technology, and Higher Education tries to develop model of long distance learning that adopts

Jayani, Dwi Hadya. “Survei APJII: Pengguna Internet Masih Terkonsentrasi di Jawa”, 16 May, 2019,https://databoks.katadata.co.id/datapublish/2019/05/16/survei-apjii-pengguna-internet-masih-terkonsentrasidi-jawa. Accessed 23 July 2019.

47 Jayani, Dwi Hadya. “Survei APJII: Pengguna Internet Masih Terkonsentrasi di Jawa”, 16 May, 2019,https://databoks.katadata.co.id/datapublish/2019/05/16/survei-apjii-pengguna-internet-masih-terkonsentrasidi-jawa. Accessed 23 July 2019.

48 Berliyanto and Santoso, Harry B. “Indonesian Perspective on Massive Open Online Courses: Opportunities and Challenges.” Journal of Educators Online, Volume 15, Issue 1, January 2018, p. 10-11.

46

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia the concept of MOOCs. However, the MOOCs are innovation potential to disrupt higher education system in Indonesia. Indonesian government has passed several legislations to regulate the system of MOOCs: (a) Law Number 20 of 2003 concerning National Education System; (b) Law Number 12 of 2012 concerning Higher Education; (c) Regulation of Minister of Education and Culture Number 109 of 2013 concerning Long Distance Learning in Higher Education; and (d) Regulation of Ministry of Research and Technology of Directorate General of Higher Education 44 of 2015 concerning National Standard of Higher Education. However, to anticipate possibility of disruptive innovation, it is essential that in the future new direction of the paradigm of policy of MOOCs in Indonesia, improvement of partnership with stakeholders, improvement of supporting infrastructure of the system of MOOCs, and improvement of culture of digital literacy be regulated.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES Aji, Kristina Anugerah. “Pemanfaatan Massive Open Online Courses: Orangtua Sebagai Pembimbing Anak Usia Dini Seni Berbahasa Melalui Kuliah Daring”. Prosiding Temu Ilmiah Nasional Guru (Ting).

Anonimous. “MOOCs: Apakah Itu? dan Mengapa Anda Harus Tertarik?”, 11 November 2017, https://www.easyuni.co.id/advice/moocs-apakah-itu-dan-mengapa-anda-harus-tertarik-651/.

Accessed 23 March 2018.

Bagley, Carole A. and Weisenford, Janet. What is Best for the Learner? Are MOOCs the Answer? in Macro-Level Learning through Massive Open Online Courses (MOOCs): Strategies and Predictions for the Future, Elspeth McKay dan John Lenarcic (Eds). Information Science Reference, USA, 2015.

Berliyanto and Santoso, Harry B. “Indonesian Perspective on Massive Open Online Courses: Opportunities and Challenges.” Journal of Educators Online, Volume 15, Issue 1, January 2018.

Bouwman, Harry, et al. “How Nokia Failed to Nail the Smartphone Market”, 25th European Regional Conference of the International Telecommunications Society (ITS), Brussels, Belgium, 22-25 June 2014.

Budhijanto, Danrivanto. Hukum Telekomunikasi, Penyiaran dan Teknologi Informasi (Regulasi dan Konvergensi). Refika Aditama, Bandung, 2010.

Christensen, Clayton M. The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail.

Harvard Business School Press, Cambridge, Massachusetts, 1997.

Crooker, Karen, Baldwin, Dirk and Chalasani, Suresh. “RFID Technology as Sustaining or Disruptive Innovation: Applications in the Healthcare Industry.” European Journal of Scientific Research, Vol. 37 No. 1, 2009.

Darmayanti, Tri, Setiani, Made Yudhi, and Oetojo, Boedhi. “E-Learning pada Pendidikan Jarak Jauh: Konsep yang Mengubah Metode Pembelajaran di Perguruan Tinggi di Indonesia” Jurnal Pendidikan Terbuka dan Jarak Jauh, Volume 8, Nomor 2, September 2007.

Direktorat Jenderal Pembelajaran dan Kemahasiswaan. “MOOCs Forum for Network Development”, 02 November 2017. http://belmawa.ristekdikti.go.id/2017/11/02/moocs-forum-for-networkdevelopment/. Accessed 30 August 2018.

Educause. “Massive Open Online Course (MOOC)”, 2015. http://www.educause.edu/library/massiveopen-online-course-mooc. Accessed 27 August 2018.

Gardiner, Mayling Oey, Rahayu, Susanto Imam et.al. Era Disrupsi: Peluang dan Tantangan Pendidikan Tinggi Indonesia. Akademi Ilmu Pengetahuan Indonesia, Jakarta, 2017.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Jayani, Dwi Hadya. “Survei APJII: Pengguna Internet Masih Terkonsentrasi di Jawa”, 16 May, 2019, https://databoks.katadata.co.id/datapublish/2019/05/16/survei-apjii-pengguna-internet-masihterkonsentrasi-di-jawa. Accessed 23 July 2019.

Law Number 20 of 2003 concerning National Education System Patru, Mariana and Balaji, Venkataraman (Eds). Making Sense of MOOCs: A Guide for Policy-Makers in Developing Countries. The United Nations Educational, Scientific and Cultural Organization (UNESCO), Paris, 2016.

Paulina Pannen, et.al. Panduan Pelaksanaan PJJ 2016. Direktorat Jenderal Pembelajaran dan Kemahasiswaan Kementerian Riset, Teknologi, dan Pendidikan Tinggi, Jakarta, 2016.

Pratomo, Yudha. "APJII: Jumlah Pengguna Internet di Indonesia Tembus 171 Juta Jiwa", 16 May 2019. https://tekno.kompas.com/read/2019/05/16/03260037/apjii-jumlah-pengguna-internet-diindonesia-tembus-171-juta-jiwa. Accessed 23 July 2019.

Regulation of Minister of Education and Culture Number 109 of 2013 concerning Distance Education in Higher Education.

Ronkowitz, Kenneth and Ronkowitz, Lynnette Condro. MOOCs: Evolution and Revolution in MacroLevel Learning through Massive Open Online Courses (MOOCs): Strategies and Predictions for the Future, Elspeth McKay dan John Lenarcic (Eds). Information Science Reference, USA, 2015.

Silvana, Hana and Fajar, Yuniar. “User Analysis Of Massive Open Online Courses (Moocs) Based ELearning System To Ensure Equal Access To Education At Higher Education.” Jurnal Educational Technology, Edutech, Vol 15 No 2, 2016.

Telcom Group. “Suara Telkom ITC Indonesia”. http://mastel.id/telkom-group/. Accessed 2 April 2018.

Yerusalem, Muhammad Rozi, Rochim, Adian Fatur and Martono, Kurniawan Teguh. “Desain dan Implementasi Sistem Pembelajaran Jarak Jauh di Program Studi Sistem Komputer.” Jurnal Teknologi dan Sistem Komputer, Vol.3, No.4, Oktober 2015.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

THE DEVELOPMENT OF THAI LAWS AND LEGAL EDUCATION: POLITICAL AND SOCIAL FORCES TO MODERNITY 1 Nattapong Suwan-in2

ABSTRACT Again and again, Thailand has gone through stages of dilemmas. Its milestones have told us unpleasant historical stories of conflicts that are influenced by political and social forces.

Having Thailand as the case study to analyze influences of external and internal changes in politics and social force, Thailand has to be flexible in adjusting its national policies and laws to serve circumstances at a time. Its laws have been developed in accordance with its administration, political system, and revolution in economy, so as its legal education that has been upgraded in correspondence with rapid changes of global dynamics.

From the monarchy to the similar style of Western democracy, Thai laws nowadays share the same or at least similar structure of legal system with those of foreigners. To be legal practitioners, Thai students have to pass jurisprudential study in universities and professional trainings. There is recent advancement in universities’ curriculums along with proliferation in bilateral and regional trade agreement that will likely bring harmonization in international legal standard and legal education to a certain level.

However, subject to the Program Standard Criteria imposed by the Office of Higher Education Commission in 2015 and the great recession on fertility in Asia, law schools in Thailand are now living in difficulty in managing their programs, especially to recruit an adequate number of qualified lecturers who have practical skills, to meet the requirements and the new change. It is therefore interesting to see how Thai universities will survive in the midst of these challenging forces.

Keywords: legal education, legal system, law program, Thai law, Thai education INTRODUCTION

The original article was published in the 律師法學期刊 in June 2019.

Assistant to the Dean for Academic Affairs; Lecturer in Law, School of Law, Assumption University of Thailand; Registered Lawyer; Notarial Services Attorney; Ph.D. in Law, College of Law, National Taiwan University; MBA, School of Business, National Taiwan University of Science and Technology. The author can be reached at law.ghchen@gmail.com and nattapong.suwan-in@au.edu. Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily represent the views and/or opinions of the institution.

1 2

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia “Law is an experience developed by reason and reason tested by experience; it is experience organized and developed by reason, authoritative promulgated by the law making organs of society and backed by the fore of that society… it is a task of social engineering designed to eliminate friction and waste in the satisfaction of unlimited human interests and demands out of a limited store of goofs in existence… it is a process of social adjusting; a system of practical compromises of conflicting and overlapping interests” The brilliant doctrine of an American philosopher, Roscoe Pound, on the contemporary jurisprudence though was long ago stated in more than a century, it well describes the development and functions of laws in Thailand today. To Pound, science of law is the association of social sciences and law, and social control and civilization.

Law is a tool of social engineering in balancing interests and resolving individual and social problems3.

Thai laws, as it has experienced external and internal influences and gone through stages of reform and change caused by politic and social forces, the development of laws according to the Thai history is the intelligent effort in improving laws in response to forces at a time and to eliminate friction and waste in the satisfaction of human demands and interests as stated by Pound.

In 1238 during the period of Sukhothai, the first period of Thai history, law was seen as an order of the king who exercised supreme power under the monarchy. There, when society was simple and static and way of life was plain, law was not connected to people, out of reach, and merely was a rule of the king whom people pay respect being influenced by the Hindu jurisprudence or the Code of Manu4.

To the Ayudhaya period when Krung Sri Ayudhaya was addressed as the Thai second capital city (1350 to 1767), once society became subtler and complex with improvement of people’s way of life, people’s demand for satisfaction of interests, law, and judiciary system was advanced that then required the law making organ dealing with such complexity. Judicial power in this period became in hands of the “Purohita” Linus McManaman, ‘Social Engineering: The Legal Philosophy of Roscoe Pound’ [1958] 33 ST. JOHN’S L. REV. 1, 16-17.

4 Vichai Ariyanuntaka, ‘Legal Research and Legal Education in Thailand’ in Institute of Developing Economies (EDS), DOING LEGAL RESEARCH IN ASIAN COUNTRIES CHINA, INDIA, MALAYSIA, PHILIPPINES, THAILAND, VIETNAM (IDE-JETRO 2003), 147-148.

3

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia and the king. Purohita was a Chief Chaplain and a helper to the king in trial and ruling.

Law was the development of judgments that later became a model and royal precedent to follow comparing to the “judge-make-law” principle in Britain. Also, it was a legislation of the king and his royal officials that was timely evidenced and stated in historical documents5.

As the matter of fact that the law making group was customarily the king and his surrounded people, to gain legal knowledge, it is not a choice you make but rather a bet of luck that if you were born in royal families or as royal officials, you would likely have chance to study and learn how to legislate law that was back then confined in royal palace. “The method of dissemination of legal knowledge was done by narrations and indirect teaching between relatives and friends who needed to exercise their legal rights”, said Honorable Judge Vichai Ariyanuntaka in his writing6. Thus, the study of law was very limited in the group of involving persons7, while general education was conducted in temples.

In the beginning of Rattanakosin period, after the end of Krung Sri Ayudhaya, because of political factor, that was the war with Myanmar (Burma), the continuation of nationhood demanded Thailand to have all existed laws assembled and revised after the loss of law collections in the invasion. Together with the establishment of new rules of law, after almost a year, Thailand in the reign of King Rama I had then finished its so called “the Three Emblems of State Law” or “the Code of the Three Seals” that was influenced by the Indian Law. It was considered as the original formality of the law of the land and had been used as basis of Siam judiciary8.

Once laws were advanced and the community developed, to no surprise, legal education was then disseminated more among the group of people involving in the judiciary; the judge, jury, and executing officer of criminal fines. But as law was yet perceived and treated confidential that dissemination of its contexts was strictly prohibited and without printing technology, it was not widely known to public9.

5

ibid 148. ibid.

7 ibid 149.

8 ibid. Siam was the former name of Thailand. See also Noppramart Prasitmonthon, ‘A Comparative Legal Study between the Common Law and the Civil Legal Tradition of Thailand’ <https://pdfs.semanticscholar.org/fb0f/615c673d84defe3617761ae104e8053fe1f1.pdf> assessed 20 February 2019, 1.

9 Nipa Suebkinneon, ‘LEGAL EDUCATION SYSTEM IN THAILAND: PAST, PRESENT & FUTURE NEEDS’ (DHURAKIJ PUNDIT UNIVERSITY 2004) < http://www.dpu.ac.th/dpurc/assets/uploads/public/ugvk7s61xasogwgso0.pdf > assessed 20 February 2019, 13.

6

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia In 1855, grounded on claims that Thai laws and its judiciary system were cruel, way out of date, unsystematic, and uncivilized by foreigners, along the revolution in Thai politics influenced by external force of colonization from England and France under the Bowring and similar treaties during the second half of the nineteenth century10, Thailand under the reign of King Rama IV decided to reform its legal system in 1891 to discharge itself from the “extra-territorial jurisdiction” turmoil which caused foreign citizens to subject to trial in special Counselors under their own laws11.

The friction basing on “internal” and “external” interests of different nations demanded Thailand to start opening up for harmonization in laws. Following the reform in 1891, the country then moved toward continental style of codification known as the Civil Law system that occupies most of the countries in Europe12. To achieve that goal and by taking nature of the country into account13, Thailand, for the purpose of balancing power of colonizing countries, had then decided to elevate and embrace foreign codes into Thai local codes. More or less, it is a transplantation of foreign justice to Siam14 that today evidences in many provisions in the Thai civil and commercial law or the “Thai CCC” (Thai Civil and Commercial Code). While Law of Contract and Law of Delict (Tort) in the Thai CCC appear to be very similar to the civil codes of Japan and Germany15, some provisions, such as Law of Family and Law of Succession, were still very much relied on local culture and national custom. It is also observed that British law under the Common Law system has also influenced Thai laws in many areas such as the Civil and Criminal Procedural Codes16.

During 1800s, by orders of the crown, the study shows that Thailand had greatly reformed almost all of its laws to meet international standard. It includes Civil Procedural Code and Constitution of the Court of Justice in 1895, the Criminal Code in Ariyanuntaka (n 4), 149. See also Munin Pongsapan, ‘Remedies for Breach of Contract in Thai Law’ in Mindy Chen-Wishart, Alexander Loke and Burton Ong (eds), STUDIES IN THE CONTRACT LAWS OF ASIA I: REMEDIES FOR BREACH OF CONTRACT (Oxford Express 2016).

11 Ariyanuntaka (n 4) 149-150. “The exception of judicial power above foreigners living in Siam (Thailand).

English subjects were not under Thai law and judiciary. Other western countries followed suit, claiming that their people should not be put under Thai law and judiciary as well because of the insufficiencies and unsystematic of Thai Law and Courts. They preferred to have their peoples subjected only to their laws and special tribunal of judiciary established by them, including citizens of their colonies in Asia”. See also Prasitmonthon (n 8) 1-2.

12 Ariyanuntaka (n 4) 151.

13 ibid.

14 Pongsapan (n 10). “The code system of Thailand was established mainly through legal borrowing. Most of the borrowed rules have survived and seem to have taken root in the new environment”.

15 ibid. See also Sandra Blechschmidt, ‘Interview with Mr. Shiori Tamura’ (CPG ONLINE MAGAZINE 2016) <http://www.cpg-online.de/wp-content/uploads/2017/02/COM-6-2016-revised-last-version-resized-new.pdf > assessed 20 February 2019.

16 Prasitmonthon (n 8) 1-2.

10

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia 1908, The Criminal Procedural Code in 1935 and also its amendments in later years17.

Along with the change of laws in Thailand that was structured and designed to align with continental style of civil law, the country, in the reign of King Rama V, had also directed outstanding officials and royal families to study laws in Europe; mostly to England and France of their great colonial power. Once returned, they paid great contribution to the land to handle judicial tasks and to enhance Thai laws against the claim of foreigner on uncivilization of Siamese laws to discharge himself from local jurisdiction. Legal system was then no longer limited to the group of people surrounded the king and be restricted in royal house or royal premises18. The study was tremendously influenced by foreign legal rules of the common law during the beginning but was later influenced by the civil law in the end19.

When the first law school was established in late 1800s, the Thai Bar Association was commissioned to operate as an academic institution to provide jurisprudential study and found people legal basis to produce new generation of officials that was once inadequate to handle judicial tasks under the change. Rather than an organization for professional training, the Bar association first structured its curriculum to focus on domestic and international laws with several numbers of language courses. The Barrister-at-Law degree would be granted to graduates who pass all requirements and that include the one-year term learning and one final exam20. In 1911, the school was transferred to be under the Ministry of Justice and had its main duty to both teach law and provide professional training before it was constituted as college21. From time to time, the Bar association had been adjusted and reorganized its structure to serve different purposes in different situations and been subjected to different supervising organizations with political and social influences22.

Nowadays, the study of Thai laws is permitted to conduct in various institutions to serve different markets that makes the Thai legal study comprehensive. Starting from university level, which carries out its jurisprudential study to found legal basis, to professional training in the Thai Lawyers Council and the Bar that were put in task to enhance intensity of legal study and train university graduates to become a lawyer,

17

Ariyanuntaka (n 4) 151-152. ibid 152.

19 Pongsapan (n 10).

20 Ariyanuntaka (n 4) 153-154.

21 ibid.

22 ibid 155.

18

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia public prosecutor, or a judge, they all work in hand to make Thailand’s legal education living up to international level.

In analysis of the Thai legal education, this paper has summarized important details of the current system to demonstrate steps to become a lawyer and/or barrister in Thailand. While the Introduction already laid some background on the development of Thai laws and legal education in the past, Parts I and II will turn readers to the current legal system after reform23 that found basis to the Thai legal study under control of the quality assurance committee24. Part III will then move to discuss on the functions of the Thai Lawyers’ Council and Thai Bar Association on training perspective with short conclusion in the end.

I. THAILAND LEGAL SYSTEM: THE CONTINENTAL STYLE OF CODIFICATION WITH SUPREME COURT DECISION AS A SECOND AUTHORITY As the result of Thailand’s great law reform, Thailand today uses the continental style of codification with supreme court decision as a secondary authority. It is a successful legal transplantation, on point of view of the author, that guarantees certain standard in law.

When it is said that Thailand uses the continental style of codification, there are four important laws to note and they are Civil and Commercial Code (as amended 1992), Criminal Code (1934), Civil Procedural Code (1934), and Criminal Procedural Code (1934), being known in the name of the four-column law25. The four-column law is Thailand’s fundamental law and it is commonly understood as the primary source of law in the country. The law contains general principles and they are comprehensively relevant in content especially in the Thai CCC. The Thai CCC contains six chapters of its main provisions and comprising of 1,755 provisions. It starts from Law of Person in Chapter 1, Law of Obligation in Chapter 2, Law of Specific Contracts (i.e. sale, exchange, hires, agency, carriage, suretyship, partnership and company and etc.) in Chapter 3, Law of Property in Chapter 4, Law of Family in Chapter 5, and Law of Succession in Chapter 6. From birth to death, all provisions in the law are logically and 23

See Part I: THAILAND LEGAL SYSTEM: THE CONTINENTAL STYLE OF CODIFICATION WITH SUPREME COURT DECISION AS A SECONDARY AUTHORITY. 24 See Part II: THAILAND LEGAL EDUCATION. 25 Sometimes called the “four-pillar law”.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia systematically connected and layout almost all singular activities of humanity we regularly see in life.

Also, it is worth to mention that though Thailand is a civil law country, norm and custom somehow play role in Thai law. The system recognizes custom as a source of written law that influences behaviors of people especially in commerce and trade that one may conclude its supplementary function similar to the French26. According to Article 4 in the General Provision section of the Thai CCC, â&#x20AC;&#x153;the law must be applied in all cases which come within the letter and spirit of any of its provision (par.1). Where no provision is applicable, the case shall be decided according to local custom (par. 2).

If there is no such local custom, the case shall be decided by analogy to the provision most nearly applicable, and, in default of such provision, by the general principles of law (par. 3)â&#x20AC;? (emphasis added), the provision shows its order and choices of law to be applied to a case. While one may view this customary law as a shadow of written law in the Thai code27, the author sees this as one of uniqueness in the Thai system to fix loophole in law in addition to the supreme court decision that is respected as a secondary authority.

Though Thailand upholds its civil law style of codification that sources of law are from acts, statutes, and regulations, the country also gives importance to the published supreme court decisions that frequently used as a guide to how court interprets written law. It reveals likelihood of success in a litigation that Thai lawyers, by analogy, can explore possibility and potentiality in reasoning to oppose or argue disputes. Unlike the common law system, the supreme court decision in the Thai case is by no mean treated as a precedent and it is not uncommon to observe that courts in Thailand are not bound by the formers in making their decisions.

Thus, to study law, students in law school in Thailand will generally be required to primarily emphasize on written law to fully understand its meaning, its gist and its objectives and to further be required to review the supreme court decisions to apprehend her interpretation to properly apply law with the case, together with customary law and general principles that all law students should be familiar.

Therefore, sources of law in Thailand, if to be ranked according to its hierarchy, will start from the Constitution which holds its superlative authority to the codified law

26 27

Prasitmonthon (n 8) 3. ibid.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia (including the four-column law), Acts, Royal Ordinance (Emergency Decree), Decree, and Ministerial Regulations and announces. As global community is getting lack of boundary driven by trade (both goods and services) and investment, with proliferation of bilateral, regional and multilateral trade agreements (i.e. free trade agreement—FTA), Thailand is more in touch with international laws and its international obligations which require domestic implementation and legislation. Some aspects of law, specially commercial law, then became even more internationalized and standardized that the same regulations can probably be found in both Thailand and Europe (i.e. intellectual property law). Usually, this sort of law will be promulgated in a form of an act or a decree which requires less time consumption in its implementation. Once the law is getting more harmonized, Thai laws will then be more universal.

II. THAILAND LEGAL EDUCATION A. Legal Study in Thailand To conform with international standard of legal education, Thai legal study is currently under control of the Office of Higher Education Commission or OHEC under the Ministry of Higher Education, Science, Research and Innovation28. By law, the Commission is responsible in managing higher education provision and promoting higher education development on the basis of academic freedom and excellence that may occasionally formulate policy, develop and set higher education standards and/or recommendations to universities in Thailand. Each year, school of law, as an operating and working unit in a university, will be periodically evaluated its performance outcome on the quality in providing educational service that its management will be closely monitored and inspected. Their mandates are said to be for conveying higher education development policies and plans that correspond to the National Economic and Social Development Plan and National Education Plan that wholly require proper management29.

However, back in the past, after the reform in 1891, law school in Thailand was

28

The Office of Higher Education Commission was previously under control of the Ministry of Education but latterly reorganized, by virtue of the Reorganization of Ministry, Sub-Ministry, and Development Act (No. 19) B.E. 2562 (2019) and the Ministry of Higher Education Commission, Science, Research and Innovation Administration Act B.E. 2562 (2019), to be under control of the Ministry of Higher Education, Science and Technology.

29 The Office of the Higher Education Commission, ‘Vision and Mission’ <http://www.mua.go.th/vision.html> assessed 23 August 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia under management of the Ministry of Justice. As a college, in 1933, King Rama VII decided to declare a royal decree to established law school as a faculty in university.

First, it was announced as the Faculty of Law and Political Science in Chulalongkorn University which was originally instituted in 1933. Later in 1934, the school was transferred to be a part of Thammasat and Political Science University. For about 14 years during 1934 to 1948, there was only one legal study institution in land before the second law school was established in Chulalongkorn University in 195130.

Today (2019), there are about 101 law schools in Thailand that are ratified by the Thai Bar Association that provide legal education service for undergraduates31. Among these, there are 18 public universities, 33 private universities, and 38 rajaphat universities that all share the number32. Of the 18 public universities, there are two openstate universities, Ramkhamhaeng and Sukhothai Universities, which provide remote learning to students who are interested in their courses but have no opportunity to enroll as a full time33.

At present, legal study in Thailand under the undergraduate level is comprised of 4-year standard study that is divided into eight terms. In these eight terms, with summer term as an option, students will generally be required to learn basic laws to found basis that later be used in their career. The curriculum will normally focus on the preparation of law students for legal practice34, so the teaching and learning in Thailand will mostly emphasize on the lecture given before a massive number of students35.

However, the author now more observes a modern style of education in teaching and learning that in-class discussion and workshop are also available in law schools.

Recently, as global and career markets have changed, needs of consumers are no longer limited to work in supply only the Thai judiciary but also to supply business.

Curriculums designed by each school have been moving from traditional or conservative module to modern state of student center where needs of stakeholders are more paid respect. It observed that apart from the basic laws that students need to learn, including the four-column law that dominates most of the courses in law program, there 30

Ariyanuntaka (n 4) 156-157.

The Institute of Legal Education, â&#x20AC;&#x2DC;List of Law Schools to be Qualified for Admission to the Institute of Legal Education of Thai Bar Associationâ&#x20AC;&#x2122; (Thai Bar Association 2018) <http://www.thethaibar.or.th/thaibarweb/files/Data_web/3_%20Kong_Borikan/thabian_naksueksa/un_thethabar1 22018.pdf> assessed 20 February 2019.

32 They were formerly a teacher college.

33 Ariyanuntaka (n 4) 157.

34 ibid 186.

35 ibid.

31

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia are more courses on business now available to muster up students to several areas of expertise. Most of these courses are a free elective course that usually provide in the third or fourth academic year to follow global trends, such as Law and Accounting, Economic Analysis of Laws and Implication for Business, Seminar on Business Law and Investment in the ASEAN Countries36, Laws on Information Technology37, Natural Resources Law, Energy and Petroleum Law, Law on Real Estate Business, Law on Fashion Business, Law on Digital Economy and Startup Business, and Law on Agriculture38, just to name a few. Generally, students will be free to choose any courses to enroll in the third or fourth year subject to their interests39.

Seemingly that after the One-Belt One Road policy were initiated by China and ASEAN’s (or even Asian) trade and investment became liberalized, pragmatism again starts booming among educators in Thailand that the curriculum in recent years has moved toward practices. As Thailand lives in a splendid geography, courses like logistics, ASEAN law, intellectual property, media and telecommunication and more are observed to have been included in many institutions’ syllabus to add values40.

However, none can likely, in return repay hands-on experiences to students as the matter of fact that institutions lack of expertise and practical lecturers. Sad but true, by being restricted according to the OHEC regulations on the qualification of part-time lecturers41 and the attitude of Thais towards teachers42, will there be any legal practitioners 36

Law and Accounting (3404201), Economic Analysis of Laws and Implication for Business (3404202), and Seminar on Business Law and Investment in the ASEAN Countries (3401411) are offered by Faculty of Law, Chulalongkorn University. Faculty of Law, ‘Bachelor of Laws Program-Course Description’ (Chulalongkorn University 2015), <http://www.law.chula.ac.th/home/page.aspx?id=59> assessed 20 February 2019).

37 Laws on Information Technology (LA363) is offered by Faculty of Law, Thammasat University. Faculty of Law, ‘Program Description’ (Thammasat University 2015) <https://reg.tu.ac.th/th/Picture/AttFile/c9b0a12f81e0-4d47-92ba-079e30983576> assessed 21 February 2019, 8.

38 Natural Resources Law (LL4407), Energy and Petroleum Law (LL4410), Law on Real Estate Business (LL4517), Law on Fashion Business (LL4525), Law on Digital Economy and Startup Business (LL4805), and Law on Agriculture (LL4806) are offered by School of Law, Assumption University—ABAC. Assumption University, ‘Undergraduate Bulletin 2018-2019’ <http://www.au.edu/images/pdf/Bulletin2018-2019_001.pdf> assessed 20 February 2019, 244.

39 These are based on the comparative study of the three bachelor of law programs (LL.B.) in Chulalongkorn University, Thammasat University, and Assumption University—ABAC in Thailand. Faculty of Law, ‘Bachelor of Laws Program-Structure’ (Chulalongkorn University 2015) <http://www.law.chula.ac.th/home/page.aspx?id=57> assessed 20 February 2019. See also Faculty of Law, ‘Program Description’ (Thammasat University 2015) <https://reg.tu.ac.th/th/Picture/AttFile/c9b0a12f-81e04d47-92ba-079e30983576> assessed 21 February 2019, 8. See also Assumption University, ‘Undergraduate Bulletin 2018-2019’ <http://www.au.edu/images/pdf/Bulletin2018-2019_001.pdf> assessed 20 February 2019, 244.

40 See n 36, n 37, n 38.

41 See Part II. B. QUALITY ASSURANCE IN LEGAL EDUCATION. 42 Thai people tend to view that teaching career is somehow way behind doctors, engineers, technicians, and lawyers, which are well credited and more in favor in the country. As the consequence, teachers are paid much more lower in return though their jobs are actually about nurturing and founding children to be a quality citizen.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia swopping their seats from law firms to law schools in universities if their salaries can possibly be cut for two-third? If yes, there will be very few in number. Though the author is one of them, comparing to those who swop from academia to a firm, the number of these niche lecturers are now in need to put Thailand’s legal education competitive in the world of free market.

According to the regulation of OHEC which requires more “qualified” careerprofessors or a full-time lecturer to be responsible in law programs, by applying Western style of education, universities in Thailand are living in a difficult situation to employ these people who are perfectly equipped with perfect qualifications on research, academic work, and practical skills, against the low payment given in return.

Opportunity to employ judges and public prosecutors as a part-time lecturer that used to be available is more or less desperately shut out because of their failure to meet this academic requirement43.

On top of that, along with the less-born-child phenomenon in Asia, Thai universities moreover have to fight and are struggle with the decreasing number of newborn child. Various courses in the law programs now attempt to attract high school students to be in their campuses. There are several numbers of law course that now offer legal study in English44, in bilingual (Thai-English)45, and major number in Thai46.

Many of them now partner their courses with oversea universities47. The total number of credits required for graduation is generally between 135 to 145 credits48. In general, to be a candidate for admission to law school in a university, student is required to complete his/her high school or M.649 (Senior High School) degree or any equivalents.

Students will also be required to take the National Assessment and Educational Test on

43

See Part II. B. QUALITY ASSURANCE IN LEGAL EDUCATION. International LL.B. Program in Business Law is wholly conducted in English. It was initially introduced by Thammasat University in 2013 and to date remains the one and only English program available in the country.

45 The LL.B program provided by Assumption University or ABAC, though by law is considered as a Thai program as the Ministry of Education positioned law schools to serve local consumption on legal services and because law is deeply connected to local culture and tradition that all the programs are required to be in Thai, it is in practice bilingual. It on one hand contains minimum requirements of law courses in Thai language to be qualified by related Thai authorities, and on the other hand provides specialized and free elective courses, as well as general education courses, in English.

46 The entire LL.B. program is wholly conducted in Thai.

47 Sakda Thanitcul, ‘ASEAN Charter and Legal education in Thailand’ (ASEAN Law Association 2009) <http://www.aseanlawassociation.org/10GAdocs/Thailand1.pdf> assessed 20 February 2019, 7.

48 See n 39.

49 M.6 is a senior high school degree in Thailand which is equivalent to the high school diploma (Grade 12) in the US. 44

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia graduating from high school (Central Admission System)50 and/or direct entrance examination (Direct Admission System)51, which is now available a number of times a year (together called the “Admission Test”), to gain certain scores to be admitted.

Sometime students are also required to pass an interview and/or attitude test (if any) subjected to regulation of each university52.

B. Quality Assurance (“QA”) in Legal Education For the purpose of enhancing Thailand’s education to live up to international standard and be universally acceptable, the National Education Act B.E. 2542 (as amended in B.E. 2445) started in 2002 introduced its quality assurance system for higher education institutions in Thailand. The scope covers law schools which provide educational services in the undergraduate level, schools of law are now therefore being bound by the standard subjected to the Ministry of Education Notification on the Undergraduate Program Standard Criteria B.E. 2558 (2015) (“2015 Notification”). To make sure that the law programs being offered by universities in Thailand will meet certain requirements on i) Regulatory Standards (curricular management in accordance with the standard criteria stipulated by OHEC), ii) Graduates (including graduate quality in accordance with the Thai qualifications framework for higher education, and graduates’ employment or research output), iii) Students (student admission, student support and development, and results experienced by students), iv) Instructors (including management and development of instructors, instructor quality, and results experienced by instructors), v) Curriculum, Learning and Teaching, and Learner Assessment (including content of courses in the curriculum, establishment of an instructional system for instructors and a process for learning and teaching, learner assessment, and curriculum operational results according to the Thai qualifications framework for higher education), and vi) Learning Resources, the six indicators are in place to be used for checking and monitoring universities’ performance each year as a repeated step of PDCA system (Plan, Do, Check, Act) that will be evaluated by OHEC.

50

National Assessment and Educational Test is administered, monitored, and conducted by the National Institute of Educational Testing Service (Public Organization)—NIETS. The test includes O-Net, GAT, and PAT. 51 The current admission system in Thailand now work in parallel between i) the National Assessment and Educational Test which accounts students a certain proportion of admission score and ii) the Direct Entrance Examination to be organized by each individual university, together with an interview or attitude test (if any).

52 Ariyanuntaka (n 4) 157-158. See also Ngamnet Triamanuruck, Sansanee Phongpala, and Sirikanang Chaiyasuta, ‘Overview of Legal Systems in Asia-Pacific Region: Thailand’ in Digital Repository (eds), OVERVIEW OF LEGAL SYSTEMS IN ASIA-PACIFIC REGION 5 (Scholarship@Cornell Law 2004).

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The score will then be published following the evaluation. Among various rules, what are viewed important and a stumbling block for universities in running law programs are likely the Indicator No. 3.2 on Student Support and Development and No. 4.2 on Instructor Quality.

According to Article 10 of the 2015 Notification, the academic program operated by the higher education institutions must have adequate qualified program faculty members, given that i) “10.1.1 the program faculty member53 must hold a master’s degree or an assistant professor title and have produced, in the past five years, at least one academic work which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment”, and ii) “10.1.2 qualified faculty members responsible for the program54, of at least five in number, must hold the same qualifications and academic works as specified in 10.1.1, and in case the program has more than one study track, each track must have at least three faculty members, who hold direct or related specialization to the track, responsible for the program”.

Further, in Article 10.1.3 (Quality of the Lecturer), the provision says “the lecturer can be either a full-time or part-time lecturer who holds at least a master’s degree or an assistant professor title in the field of study or related field. Where the fulltime holds merely a bachelor’s degree, they can continue teaching in the program only if they have been teaching in such program before the Undergraduate Program Standard Criteria B.E. 2558 takes effect”.

In the case of the part-time lecturer, they are required to have the same qualifications but if “(they) have no master’s degree, they are required to have at least a bachelor’s degree and have at least six years of working experience related to the course.

Whatsoever the case will be, the part-time lecturer must not teach more than 50 percent of the total number of hours of a course in which a full-time lecturer is responsible for the management of the course” Whilst in the Ministry of Education Notification on the Graduate Program Standard Criteria B.E. 2558 (2015), the conditions on the qualified program faculty 53

According to Article 4 of the 2015 Notification, the Program Faculty Member shall mean a full-time faculty member who holds a degree in the field of study or related field of study and teaches and conducts research in the field of study.

54 According to Article 4 of the 2015 Notification, the Faculty Member Responsible for the Program shall mean a program faculty member who is i) responsible for developing and managing curriculum and instruction which include planning, controlling quality, following-up, evaluating and developing, and ii) is involved throughout the implementation of the program.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia members in the Master of Laws program are i) to hold at least a master’s degree and ii) have produced , in the past five years, at least three academic works; one of which is a research which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment (Articles 10.3.1).

And the conditions on the qualified faculty members responsible for the program, of at least three in number, to hold i) a doctoral degree or at least a master’s degree and an associate professor title (emphasis added) and ii) have produced, in the past five years, at least three academic works; one of which is a research which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment (Articles 10.3.2). Despite of that, Article 10.3.5 (Quality of the Lecturer) also requires lecturer, either full-time or part-time, to i) hold at least a master’s degree in law or in related field, ii) have teaching experience, and iii) have produced, in the past five years at least one academic work which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment. This is while the 50-percent limit of a parttime lecturer still applies.

Moreover, in the Master of Laws program, Article 10.3.3 also requires thesis/independent study major advisor to i) be a program faculty member, ii) hold a doctoral degree or at least a master’s degree with an associate professor title (emphasis added), and iii) have produced , in the past five years, at least three academic works; one of which is a research which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment. The burden is even tougher when it comes to the qualifications of the thesis examiners which require three committee members comprising of either i) one or two program faculty members having the same qualifications as the major advisor or ii) one or two external experts holding a doctoral degree and have produced at least 10 academic works related to or in line with the topic of the student’s thesis or independent study and published in journals listed in accepted national database55.

As the result, law schools are now living in difficulty in managing their programs to meet the requirements, especially to recruit an adequate number of qualified members

55

External experts who do not have the above qualifications and academic works but have knowledge, expertise and experience related to or in line with the topic of the student’s thesis can act as thesis examiners with the approval of the University Council and acknowledgement of the Commission on Higher Educations.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia who have practical skills to work. Despite the unlikelihood of possibility that practical lawyers will switch to work in academics, many of them obtain only a bachelor degree though they have great numbers of years of practical experience. They are hence unqualified to pass on their knowledge. Following the trend of proliferation of international trade and investment of which requires more number of interdisciplinary legal experts in market, it is likely hard for internal management to bridge the gap between practices and theories under these regulations.

Also, though the regulations provide some exception clauses (i.e. Article 10.1.2 of the 2015 Notification), given in its last par. that “in case the program is unable to complete the number of faculty members responsible for the program, the University may propose the appropriate number and qualifications of faculty members responsible for the program to OHEC for approval”, this is yet not easy and subjected to consideration and discretion of OHEC on case by case basis. Not to mention that there is very limited number of international journals in law that are qualified and recognized

by OHEC according to the publication criteria stated in OHEC’s Regulations on Academic Title Appointment B.E. 255656, nuisance in their program management is then severe.

By taking Thai history in the introduction part into consideration, likely, law schools in Thailand are more into teaching rather than producing research.

III. PROFESSIONAL ASSOCIATIONS A. Thailand Lawyers’ Council under the Royal Patronage In speaking of Thai legal education, it will be incomplete if this paper ignores mentioning the function of the two Thai professional associations, the Thai Lawyers’ Council and the Thai Bar, in legal training.

Following jurisprudential study in law school, Thailand Lawyers’ Council will provide professional training to transform law school graduates to be a lawyer.

According to Article 4 of the Lawyers Act B.E. 2528 (1985), lawyer is defined as “a person who has been registered as a lawyer, and a license has been issued to him or her by the Lawyers Council (emphasis added). Therefore, by law, there can be no one being

This is to note that among the 19 international journals listed in the exhibit to OHEC’s Regulations on Academic Title Appointment B.E. 2556, there are likely only three journals in law, including Scopus and Social Science Research Network, being qualified and recognized by the commission.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia a lawyer or practicing law in Thailand without i) a law degree, ii) having registered with the Lawyers’ Council, and iii) obtaining a license to practice. Unlike the United Kingdom, lawyers in Thailand are not divided into barristers and solicitors, nor are required to pass a bar exam as they would be required in the United States57.

In order to be registered and obtain a lawyer’s license, an individual must meet certain educational requirements and that requires i) an LL.B or an associate degree or a certificate in law equivalent to an LL.B. or an associate degree from an educational institution accredited by the Thai Lawyers’ Council, and ii) completion of training in professional ethics and basic principles of advocacy and legal profession58. The training, which is run by the Institute of Law Practice Training of the Lawyer’s Council, is divided into two stages. In the first stage, the candidate will be required to learn the theory of case conduct and professional ethics for not less than 90 hours and will subsequently be required to pass the test at the end of the term. Then in the second stage, the candidate will be required to have an internship in a qualified law firm. After six months (at least) of actual training, the candidate will need to apply their knowledge in the second test before he or she is qualified to a lawyer’s license59.

It is also important to note that to be a lawyer, the profession is by law restricted and reserved to only Thais60. According to Thailand’s Foreign Business Act B.E. 2542 (1999), legal service business is the business which Thai national is not ready to compete with foreigners subject to the List No. 361. Foreign citizens are therefore being prohibited to operate legal service unless permission is granted by the DirectorGeneral62.

By law, the lawyer’s license is valid for two years from the date of issuance and it subjects to renewal 90 days prior to its expiration. To avoid any interruption63, it is optional for Thai lawyers to apply for a lifetime membership64.

Charunun Sathitsuksomboon, ‘Thailand’s Legal System: Requirements, Practice, and Ethical Conduct’ (Thailand Law Form) <http://thailawforum.com/articles/charununlegal.html> assessed 20 February 2019.

58 ibid. See also the Lawyers Act B.E. 2528, art 35.

59 Sathitsuksomboon (n 57).

60 The Lawyers Act B.E. 2528, art 35.

61 Thailand Foreign Business Act, art 4 provides: “Foreigner means (1) natural person not of Thai nationality; (2) juristic person not registered in Thailand…”.

62 Foreign Business Act B.E. 2542, art 8.

63 The Lawyers Act B.E. 2528, art 44 provides: “The lawyer title can be ceased upon terminated by (1) death; (2) notification of his termination of practice; (3) failure to renew his license…”.

64 The Lawyers Act B.E. 2528, art 39.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia B. Thai Bar Association While in Thailand, lawyer’s license is an essential requirement to practice law and be a lawyer, the Thai Bar is on the other hand a prerequisite to become public prosecutor or a judge. As such, the lectures in Thai Bar more focus on decisions of the supreme court and analysis on the analogy and the court’s arguments. This attracts many legal practitioners to enroll for the course to gain more knowledge in law though they may not run for judicial exams in the end.

Rather than producing personals to serve judiciary in the Ministry of Justice in the old day65, the operation of the Thai Bar Association nowadays focuses more on promotion of education and knowledge of legal practice for law practitioners66. This aim was stated in the objective of establishment of the Legal Education Institute of the Thai Bar Association that was accorded to the Agreement of the International Bar Association in which Thailand is a member. It was the consensus of the International Bar Association which was held in Hague, Netherlands, in 194867.

At present, to be qualified as a candidate to apply to study in Thai Bar, the applicant must be a person who graduates with Bachelor of Laws degree from universities in Thailand or overseas and passes an examination to the standard stipulated by the Legal Study Committee of the Bar according to Article 56 of the Thai Bar Association Regulation B.E. 2507 (1964) (“1964 Regulation”).

Subject to the Rule of the Thai Bar Association on Student Registration, Teaching and Learning, Examinations, and Disciplines and Ethics B.E. 2507 (1964), Article 5 states that the curriculum of study is comprised of two semesters and two written exams. In Article 5 par. 2, it states that the first semester begins in June and ends in September and the second semester begins in December and ends in March. The written exam is held at the time in between.

Time of teaching in the Thai Bar is between 8.00 to 16.30 of the normal class and from 17.00 to 20.00 of the evening class but class attendance is not a requirement.

Students are permitted to study at home68.

According to Article 8 of the Rule, in the first semester, students will study criminal and civil and commercial law course. It includes administrative law, labor law, 65

See INTRODUCTION. Ariyanuntaka (n 4) 149. See also Sathitsuksomboon (n 57).

67 Ariyanuntaka (n 4) 149.

68 ibid 170.

66

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia criminal law, obligation, torts, juristic act, civil law on property, sales, hire of property, hire-purchase, hire of labor, hire of service, exchange, gift, deposit, loan, suretyship, pledge, mortgage, bill, agency, broker, partnership and company, family, succession, land law, tax law, intellectual property law and international law, of which account 20 questions in the final test. And in the second semester, students will study on criminal and civil procedural law, which includes bankruptcy law, civil procedural law, criminal procedural law, constitution of the court of justice, trial procedure in juvenile and family court, evidence law and litigation and witness examining practices, of which account another 20 questions in the second test69. If students can pass all the tests, they will then be qualified to take an oral test before being entitled to Barrister-at-Law degree70. Later, they will then be qualified to apply for a judicial recruitment, either to be a judge or public prosecutor, of course if they are willing to be.

Apparently, the way of learning and testing law students in legal education of Thai Bar can be differentiated from those in universities as its curriculum focuses more on professional training and the supreme court decisions as a secondary authority that are commonly respected by judges in lower courts (emphasis added).

According to Article 3 of the 1964 Regulation, membership of the Thai Bar Association are of five different classes; they are ordinary membership, extraordinary membership, associate membership71, auxiliary membership72, and honorary membership73. Whilst all registered lawyers in Thailand, by virtue of the Lawyers Act B.E. 2528, are admitted to extraordinary membership, only students who pass all the requirements that earlier stated will then possibly be admitted to the ordinary member of the Bar.

CONCLUSION Said Honorable Judge Vichai, â&#x20AC;&#x153;the appropriate lawyer is compared with social architect or engineer. He or she should have very keen legal knowledge in particular area. Economic, social, and politic matters will be important for all lawyers to

69

ibid.

Sathitsuksomboon (n 57).

71 Associate membership is for a second-class lawyer that was first originated by virtue of the Lawyers Act B.E. 2508. After the enforcement of the Lawyers Act B.E. 2528, the second-class lawyer was then abolished.

72 Auxiliary membership is for students of the Institute of Legal Education of the Thai Bar Association.

73 Honorary membership is given to any distinguished person with extensive knowledge of legal or political science.

70

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia understand the situations and its implications. Lawyers, therefore, will be able to manage to establish justice in the society, which is the step toward elevating quality and integrity of Thai community. Lawyers should be able to protect state interest and sovereignty”74. To have a great lawyer, as a social engineer who shapes and keeps proper structure of local society stated by Pound, it is the matter of nonstop learning and wellrounded knowledge that legal education is a big and significant part of entire effort and contribution of institutions and professional associations in the country. To certain point, the current education system in Thailand is, by point of view of the author, already well designed to prepare law students to the path but the system (i.e. the QA system) is supposed to be more flexible by taking nature of each specific field of study, such as law, into consideration. It is argued by the author that there is no one-size-fit-all concept for education standard that can be identically and equally applied to all fields. Besides, perception of Thais towards local teaching career can be changed with campaigns and social movement to value more this “mentoring” profession. Thailand now needs interdisciplinary legal experts more than ever in the midst of political and economic changes to sustain its “modernity”. The choice is nonetheless in hands of all legal practitioners, including educators, in land.

74

Ariyanuntaka (n 4) 175.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES Ariyanuntaka V, ‘Legal Research and Legal Education in Thailand’ in Institute of Developing Economies (eds), Doing Legal Research in Asian Countries China, India, Malaysia, Philippines, Thailand, Vietnam (IDE-JETRO 2003).

Assumption University, ‘Undergraduate Bulletin 2018-2019’ <http://www.au.edu/images/pdf/ Bulletin2018-2019_001.pdf> assessed 20 February 2019.

Blechschmidt S, ‘Interview with Mr. Shiori Tamura’ (CPG Online Magazine 2016) <http://www.cpgonline.de/wp-content/uploads/2017/02/COM-6-2016-revised-last-version-resized-new.pdf > assessed 20 February 2019.

Faculty of Law, ‘Bachelor of Laws Program-Course Description’ (Chulalongkorn University 2015), <http://www.law.chula.ac.th/home/page.aspx?id=59> assessed 20 February 2019).

Faculty of Law, ‘Bachelor of Laws Program-Structure’ (Chulalongkorn University 2015) <http://www.law.chula.ac.th/home/page.aspx?id=57> assessed 20 February 2019.

Faculty of Law, ‘Program Description’ (Thammasat University 2015) <https://reg.tu.ac.th/th/ Picture/AttFile/c9b0a12f-81e0-4d47-92ba-079e30983576> assessed 21 February 2019.

McManaman L, ‘Social Engineering: The Legal Philosophy of Roscoe Pound’ [1958] 33 ST. JOHN’S L. REV. 1.

Pongsapan M, ‘Remedies for Breach of Contract in Thai Law’ in Mindy Chen-Wishart, Alexander Loke and Burton Ong (eds), Studies in the Contract Laws of Asia I: Remedies for Breach of Contract (Oxford Express 2016).

Prasitmonthon N, ‘A Comparative Legal Study between the Common Law and the Civil Legal Tradition of Thailand’ <https://pdfs.semanticscholar.org/fb0f/615c673d84defe3617761ae104e8053fe1f1.pdf> assessed 20 February 2019.

Sathitsuksomboon C, ‘Thailand’s Legal System: Requirements, Practice, and Ethical Conduct’ (Thailand Law Form) <http://thailawforum.com/articles/charununlegal.html> assessed 20 February 2019.

Suebkinneon N, ‘Legal Education System in Thailand: Past, Present & Future Needs’ (Dhurakij Pundit University 2004) < http://www.dpu.ac.th/dpurc/assets/uploads/public/ugvk7s61xasogwgso0.pdf > assessed 20 February 2019.

Thanitcul S, ‘ASEAN Charter and Legal education in Thailand’ (ASEAN Law Association 2009) <http://www.aseanlawassociation.org/10GAdocs/Thailand1.pdf> assessed 20 February 2019.

The Institute of Legal Education, ‘List of Law Schools to be Qualified for Admission to the Institute of Legal Education of Thai Bar Association’ (Thai Bar Association 2018) <http://www.thethaibar.or.th/thaibarweb/files/Data_web/3_%20Kong_Borikan/thabian_naksue ksa/un_thethabar122018.pdf> assessed 20 February 2019.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The Office of the Higher Education Commission, ‘Vision and Mission’ <http://www.mua.go.th/vision.html> assessed 23 August 2019.

Triamanuruck N, Phongpala N, and Chaiyasuta S, ‘Overview of Legal Systems in Asia-Pacific Region: Thailand’ in Digital Repository (eds), Overview of Legal Systems in Asia-Pacific Region 5 (Scholarship@Cornell Law 2004).

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

WOMEN RIGHTS: “ROLE OF WOMEN ENTREPRENEURS IN PROMOTING CORPORATE SOCIAL RESPONSIBLY IN CAMBODIA” Hong Sochea

ABSTRACT Historically Cambodia women are following tradition and norm in society as a whole which makes it difficult for women to be confident in starting up a business. Empower women in Cambodia to become entrepreneurs will require actions from relevant stakeholders. Women likely show more responsibly in term of contribution to social activities. Consequently, Women are lacking capacity in business knowledge, receiving relevance trainings and accessing capital investments to sustain their business growth.

This paper will look at what extent women are able to enjoy their rights in operated business and using a leadership role to promote corporate social responsibility in Cambodia.

Based on desk reviews relevant documents, reports, articles, books, journals, law and regulations are available. The paper will examine human rights and CSR principle and looking at the Royal Government of Cambodia mechanisms in order to provide inclusive impact for the role of women Entrepreneurs in fostering Cambodia CSR. Keywords: Corporate Social Responsibility, Gender equality, Women Entrepreneurs, Human rights

I. INTRODUCTION According to Cambodia constitution article 45 stated that all form of discrimination against women should be abolished in which the form of exploitation of women labour shall be prohibited. Women and men have equal rights in all fields. Especially, for those women who married and have family.1 In this case, Cambodian women has endowed in supreme law of the kingdom. Therefore, Cambodia labour law 1997 article 12 provides that the regulation of protecting women and child, no employer shall consider on account of race, sex, colour, creed, religious, political opinion, birth, social origin, memberships of workers union or the exercise of

1

Cambodia Const article XXXXV § 3

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia union activities.2 In addition to Cambodia domestic law, women rights has also promote in United Nation Convention on the elimination of all form of discrimination against women (CEDAW) which gives in article 11 1(a) the right to work as an inalienable right of all human beings; 11 1(b) the rights to have the same employment opportunities, including the application of the same criterial for selection in matter of employments; 11 1(c) the right to have free choice of profession and employment, the right to have promotion, job security and all benefit and condition of services and the right to received vocational training, including apprenticeship, advanced vocational training and recurrent training.3 Even focus on Sustainable Development Goals (SDG) and Cambodia Sustainable Goals (CSDG) goal number 5 to achieve gender equality and empower all women and girls; adapts and strengthens sound policies and enforceable legislation for the promoting gender equality.4 Based on Asian Development bank (ADB) report stated that there are around 65% women run business, but smaller size than those business run by men. Womenâ&#x20AC;&#x2122;s businesses are less success than business that run by men. Their businesses are more concentrate on service, wholesale, trade and retail. However, women have greater access to financial service which 80% of micro finance institutes are women clients. Some obstacle for business growth that run by women due to lacking access to infrastructure (road and electricity), culture barrier (discrimination and disvaluing of women entrepreneurs), and unable to access to financial support (long-term financial).5 Similarly, as women operate two-third of nation micro-business with no business knowledge support, no confidence in term of making decision. As the result Cambodian women participate in the four sectors which are hospitality, retail, accommodation and handicraft.6 Young women in Cambodia represents 33% the total youth population which most of them age 15 to 30 of age (Youth Resource Development Program, 2012). Therefore, Women consider as vulnerable people which means they shall have tremendous focus protection on their rights. The rights that beyond traditional practice that empower them to be substantial for themselves. Tradition norm in society environment limited womenâ&#x20AC;&#x2122;s ability and opportunity enter to business sector that dominated by male business association. The place where informal information-shared for business expansion and opportunity growth (Attitudes Gender Relation and Attitudes Cambodia Gender Assessment, 2014).

2

January 11, 2019, Cambodia labour law 1997, article 12, p 6 January 12, 2019, Convention on the Elimination of all form of discrimination against women (CEDAW) 4 Retrieved 25 January, 2018, Sustainable Development, https://sustainabledevelopment.un.org/sdg5 5 ADB Country Partnersip Strategy Plan: Cambodia, 2014-2018.

6 https://www.khmertimeskh.com/88356/businesswomen-convene-find-solutions-opportunities/ 3

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia It is very importance for all actors to take concrete step for women to ensure their participation in decision making in both public and private sectors. It is time for Cambodian women to rise up as leader.7 The involvement of women in decision making in business which they become entrepreneurs is vital for Cambodia society. Women can play a role in corporate social responsibility (CSR). CSR is involved the commitment of the company in the responsible manner to contribute to society as producers, buyers, employers.8 There are still gaps and concerns for promoting role of women entrepreneurs in promoting CSR in Cambodia. Therefore, many factors that could work on, but in this research the author will focus only two main factors that have not mention in previous study. The first one is that if women has succeed in the role of participating in business and using their role to promoting CSR in Cambodia.

II. HISTORICAL OBSTACLE FOR CAMBODIAN WOMEN Women in Cambodia consider as heavenly goddesses which on the wall of Angkor Wat Temple. They were called Apsara, having beautiful smile and distant gaze oblige as paragon of Cambodia women; represent the symbol of purify and smooth of elegance of virtuous female.

Somehow, in Khmer folk tale literature has played very critical role for the image and personality of Khmer women; thus, the combining teaching from the religious practice through Buddha’s dharma. The folk tale that most influence is the story of Tom and Teav (Parents take controlling over every decision of their children in the family).9 Furthermore, the diversify aspects across the historical of women in Cambodia stay under an old proverb “Women are no more than white cloth; while, men are gem. A white cloth is muddled which it can never be washed to it used to be. In contrast, a gem can be easy cleaned to shine and brightness as always”. The reflection for women to practice is that if Khmer women make a wrongful doing, they have never be the same status as before, but for men are completely different which they can do any activities they want.

So, they’re still a man. The practice of this value lead to discrimination between men and women in Cambodia society. Women should be treated equally as men due they have equal right as men in the society which is not about just in Cambodia society.

7

Time for Cambodian women to take the lead, Opinion, Phnom Penh Post January 12, 2019 https://www.phnompenhpost.com/opinion/time-cambodian-women-take-lead 8 Retrieved 12, January 2019: https://www.researchgate.net/publication/255700427_Corporate_Social_Responsibility_A_Way_Towards_Wom en_Empowerment M. Walsh, PROJECT ON WOMEN’S RIGHTS IN CAMBODIA: LICADHO – UQAM PARTNERSHIP, REPORT ON THE STATUS OF CAMBODIAN WOMEN Domestic Violence, Sexual Assaults and Trafficking for Sexual Exploitation. (2007) 9–10.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Therefore, in this case focus on Cambodia culture and norms. Human rights has applied for all because men and women are human. The right that is universality, inherence, inalienable and with dignity for member of the family.10 Women should have equal opportunity in term of received the same education, joining employment and participating in income-generation; particularly in doing economic empowerment.

A. Culture and Norms Nevertheless, the gender stereotype has embedded in Cambodia culture and norm which it is the barrier in family, but also in schools, communities, workplace and media remains in Cambodia society. The Chbap Srey, a Cambodia’s outline code of conduct for women to practice which restricts women to exercise their freedom of choice and making their own decision.11 Khmer women were trained to be responsible in their household role in Cambodia society. The role is to take care of the family, respecting husband. Women requires to speak soft and behaviour in a proper manner at any circumstance. “Never gossip anything to your parents about your husband or this will cause the village to erupt.” “Never turn your back on your husband when he sleeps and never touch his head without first bowing in honour.” “Have patience, prove your patience, and never respond to his excessive anger.”12 The Chbap Srey stated. The showcase is one in many gender norms in Cambodia which pressure women to have voice for themselves.

Women in societal Cambodia has struggled through the code of conduct for women. The code has taught to women young generation for years. Hence, they have never enjoyed their rights in dreaming doing to activities that they’re passionate about. For instance, Women don’t need to go to school due to they don’t need any knowledge from school. As when they are in the age of married; the legal age for women to married is when women turn to 18 years old of age.

They’ll stay home to look after children.

In fact, if they go to school, they should understand more about the issue of culture and norm in the society. Somehow, they will fight for their right through-out education. By using the knowledge granted from school to justify the stereotype. Especially, parent in the household family worried about the debate on their practice tradition that pass from generation to generation and questions. For this reason, women are being warn that knowledge isn’t import as most of the time household shore falling into women responsible. Women don’t even allow to imagine about their freedom and voice. If they will keep hearing the same thing from their family and the 10

International Covenant on Civil and Political right, preamble, p. 13 A/HRC/WG.6/32/KHM/2 12 M. Walsh, PROJECT ON WOMEN’S RIGHTS IN CAMBODIA: LICADHO – UQAM PARTNERSHIP, REPORT ON THE STATUS OF CAMBODIAN WOMEN Domestic Violence, Sexual Assaults and Trafficking for Sexual Exploitation. (2007) 9–10.

11

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia community. How women can gain new knowledge if they havenâ&#x20AC;&#x2122;t taught beside Chbap Srey and receive education by allowing women attends school at least finishing high school.

B. Society-valued in Cambodia The society that give value to men from top-to bottom in the country. Even-though, in the government, private sectors and somehow NGOs as well. Most of the leadership duties in the top management in the operation which managed by men across all sectors. However, Khmer women are having the progress of gain more freedom and having their right by increasing employment opportunity through economic development. Women are expected to follow social norm while men enjoy their gender privilege. Women still stay under gender obstacle which underpin their capacity and potential for contributing to society as the same citizen. Gender bar is the value of women equally treated. For instance, women should gain fully participate in economic, social and culture benefit. The society that still practice old stereotype which the norm and tradition that confine women as weaker to do the job that men can. Women arenâ&#x20AC;&#x2122;t encouraging to use their potential ability beside look after household and childcare duties because of men lead every decision in family, community and society.

Women migrate to urban area have increased tremendously in recently day in the sake of searching for employment to support their family as the expectation of tradition and norm require women rethink double for family supported-income. Most of them are living the place that cheap with unhealthy and unsafe condition. The money earn has divided into two portion of it; one-part sends to their parents and other spending to take care their health and well-being due to the living condition is unclean in their work environment. The study show that unsafe condition makes women vulnerable to violence and sexual exploitation. Thus, they need supporting from their family and friends. In contrast to the seeking for job in the city. Women is face to another lacking for necessary resource in the sense of building entrepreneurship which require women to have confidence in themselves and having strong decision-making skill. The society of Cambodia taught them to be shy and less self-confidence. The access to information as well as available resource is so crucial for entrepreneurs. Some information requires strong following up like law, regulation of Cambodia government. The less self-balance which lead to bury themselves in the situation that they have to face and mind-set challenges from tradition.13 The majority women perform mostly in domestic job, but unpaid work in household and community. The invisible women and girl to prevent to have high level of education, so they are able to get more pay.

Thereby, life option and economic autonomous is limit for them. Fortunately, lower education

13

Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p 4

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia women can earn income through work at garment and footwear industries across the country.

The industry employment around 700,000 workers during the last decades. As progressively sees that women be able to participate in economic employment even-though the employment is in labour driven sector.14 Having greatest percentage (76% to 80% between 2008 and 2012 for women age from 15 to 65) of women participate in economic empowerment opportunity, but gender stereotype closes their chance to expand in economic activities. As comparing to 70% of female worker to 56% of men. Most of women are self-employed run small family business, street and market vendors. The job provides unskilled work like employed at the garment and footwear factories and domestic job in urban area. Those works are consider appropriated work for them due to the case of tradition stereotype.15 To addressing the economic limitation for women due to stereotype and norm, enhancing opportunity for education train them about women empowerment.

Whereas, Cambodia government have achieve higher number of registration for primary and elementary, but the drop-out number remain high among female students as the society value on boy over girl education that is another barriers to women to peruse education. The will of the parents is that for daughter to look after their parent when theyâ&#x20AC;&#x2122;re elder, taking care sibling, and doing housework is enough for women to fulfil their duties in the society. As the result, women get married earlier than men; even start school later than men and withdraw from earlier men.

According to the study of Cambodia Demographic and Health Survey (CDHS), 2010, â&#x20AC;&#x153;onequarter of Cambodia women aged 25-45 are married by age 18; the average age marriage is 20.2 for women compared 22.6 for menâ&#x20AC;?. (Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014). On the other hand, ASEAN economic integration expects Cambodia to gain more employment through free movement of labour, so there are concerning about low educational attainment as well as lacking of skill of technical to compete within the region of ASEAN countries such as Singapore, Malaysia, Indonesia, Thailand, Brunel, Vietnam, The Philippine, Loa and Myanmar. Norm and tradition pressure Cambodia women to support family, so they will search for alternative income from another ASEAN country which result for them give up school because of the integration, rather than proving women and girl opportunity to receive higher education.

The percentage is lower of women in leadership and senior level because of the norm and tradition push women away from holding a leader position. Still in the perspective of

14 15

http://sea-globe.com/cambodia-economy-under-fire-from-possible-eba-loss/ Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p 3-

4

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia discrimination for women ability can produce the work as equally as men. Women should able to have capacity of knowledge the same as men unless they treat equal in the society. Especially, women participate from low to higher education level. The increased percentage of women and girls in education attainment which contribute to women economic empowerment and the inclusive growth of economic.16 Another word, women should be train in soft and hard skill, so they be able to gain strong confident in leading role dual places public and private sectors. Life experience play very significant for women in the condition of involve in business and entrepreneurship. Based on United Nation Women found that “Women’s economic empowerment is central to realizing women’s rights and gender equality. Women’s economic empowerment includes women’s ability to participate equally in existing markets…increased voice, agency and meaningful participation in economic decision-making at all levels from the household to international institutions”. Otherwise, women’s economic equality is positive for business. Both companies that run by women as entrepreneur and women employed by other companies will benefit from leadership opportunity for women.17

III. Overviews of Cambodia Legal Instrument Yet, Cambodia probably the most war-torn country in South-Asia. If talking about legal system, Cambodia is mostly likely similar with the countries in the region of Asian. The system of law in the country has deep down evolve from customary law to modern law. The classification of the law separates into two main period of time from juris scholars. The Khmer customary law normally refer to unwritten law which was from ancient Funan to Angkor Wat time. The consensus was the form legal usage

during that time. The codification of Cambodia of the

modern law is from 1336 to the present.18 Then, Cambodia felt under French protectorate in 1863.

Legal system was influence by French system spread out the whole country whilst the law attached in education system. But also Cambodia lawyers, judges and persecutors had practiced until 1975. 19 The tragedy during Khmer Rouge which the entire of legal system of law has been eliminated but also most of legal scholars have executed. Cambodia received a short invasion from Vietnam because of teachers, university professors, legal school were kill during Pol Pot regime. There was shortage of legal practitioners. The emerging of legal system again while the system influence by Vietnam system during that time. There were major Cambodia legal

16

http://www.unwomen.org/en/what-we-do/economic-empowerment/facts-and-figures http://www.unwomen.org/en/what-we-do/economic-empowerment/facts-and-figures 18 Introduction to Cambodian Law; Hor Peng, Kong Phallack, Jorg Menzel, Chapter 1, P7-10, 2012 19 Introduction to Cambodian Law; Hor Peng, Kong Phallack, Jorg Menzel, Chapter 1, P7-10, 2012 17

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia instrument and regulation promulgated included contract law. The enacted some of country important law during the United Nation Transitional Authority of Cambodia (UNTAC) such as criminal, juridical and press law. Moreover, the increasing of number of law started draft with relevant stakeholders and actors for consultation within the assistant of development partners (DP) like Japanese government and other. The significant of the drafting law was the new Cambodia constitution which the supreme law of the country. The new constitution has integrated and recognize international rights law in the article which is specific in chapter III of the constitution.

Through many difference period of regime which Cambodia legal instrument developed from an unwritten law to the law that fully enacted with international law system based on United Nation covenant and charter. Cambodia legal system has driven by the hierarchy of source law as following: Cambodia Constitution: The constitution is the top law of the country. All the law and decisions made by state institution must be restrict in conformity within the Constitution.20 Royal Krom/Law (Chbap): The law that has passed by National Assembly and Senate; and promulgated by the King or acting Head of State.21 Royal-decree: A Royal decree is an executive regulation which proposed by the office of the council ministers and signed by King or acting Head of State.22 Sub-decree: A Sub-decree is an executive regulation which proposed by relevant ministries, and adopted by the office of the council minsters; signed by the Prime Minster.23 Proclamation (Prakas): A proclamation is an executive regulation propose at mistrial level and prepared by relevant ministries which signed by the relevant ministries.24 Decision: A decision is an executive regulation make by Prime Minster, and relevant ministries. A decision can be found in Cambodia constitution Art 150.25 Therefore, the word â&#x20AC;&#x153;decisionâ&#x20AC;? is hard to define in law. The only final and binding decision is from constitutional council. As it has the supremacy of law.

20

Constitution, Art 150-new (1993as amended in 1999) Constitution, Art 28-new (1993 as amended in 1994 and 1999) 22 Constitution, Art 28-new (1993 as amended in 1994 and 1999) 23 Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994) 24 Law on the Organization and Functioning of the Council of Ministers, Art 28 and Art 29 (1994) 25 Cambodia Constitution, Art 150-new I 1993 as amended in 1999) 21

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Bylaw (Deika): A bylaw is legal rule that adopted from Council at the sub-national. The context refer to capital, municipal, provincial, district, Khan, commune, Sangkat council which have legislative power to issue by bylaw.26 International Law: According to the decision made by Constitutional council27 that international law is considered a source of Cambodian law. All international treaties can be consider as the source of Cambodia law after a vote of approval from the national assembly and Senate; signature and ratify from the king.28 Circular: A circular is use to clarify the work and affair of the ministries or the point of law and giving instruction. A circular normally signed by the Prime Minister or relevant ministers.29 Crucially that Cambodia recognize most of core human right treaties. Event stated clearly in its Constitution text as one of the source of the Cambodia law. Constitutional council have also reminded judge to use international law include in the decision making process. Therefore, some scholars argue that Cambodia adopted muralist system; in contract, other scholar stand that Cambodia is a dualist system. In fact, Cambodia adopted both of the system dualist and muralist based on Cambodia constitution and the decision constitution council.

The source of Cambodia legal system is driven very vital for Cambodia legal instrument to implement legal aspect in the role of law in the country. After the law have passed and ratify by king; those law official published in the book of royal gazette for the dissemination to the whole country as part of information distribution to the citizen for about the law and other government affairs. The important is that law adopted to prevent the social issue, social injustice and the interference from other states to sovereignty state. However, there are still lacking of law due to law is passed by national assembly and Senate canâ&#x20AC;&#x2122;t over all matter occur in the country; as the development change rapidly through global movement. For instance, women economic empowerment which is the entrepreneurship of the women have leave out to mention in specific intervention in clause of the law adopted. Even better if consider to focus on women entrepreneur as well as social corporate responsibility (CSR). Cambodia in the currently circumstance should put effort to promote women entrepreneur in law implementation of the government. In the same time, in the law making process should consider women as one of the priority as agenda in

26

The law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and law on Administrative Management of the Capital, Provinces, Municipalities, District and Khan, Art 32 and Art 53-Art 61 (2008) 27 The Constitution, CASE No 131/003/2007 of June 26, 2007, Decision No 092,003/2007/CC.D of July 10, 2007 28 Constitution, art 31 (1993) 29 Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994)

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia discussion consultation. Similarly, CSR should be integrated into of Cambodia law for preventing the violation for human right from company or enterprise that cooperate in territory of Cambodia.

Huma right violation in business become prior concerning from international community which especial in United Nation context. The UN has introduced the Guiding Principle (GP) on the three aspect pillars; 1) the duty for state to protect again human right abuse by business enterprise in their territory or jurisdiction; 2) all businesses must respect to human rights through their business operation activities; 3) government must provide access to local remedies to the issue of human right violation.

A. Cambodian Government The Royal Government of Cambodia has committed to promote and protect human right as it has ratified which at least eight of core human right treaties. Women right is a primarily focus for the Royal Government of Cambodia as it laid out on Cambodia instruments, policies, strategies and plans. The focus on women right which RGC recognizes about the crucial of women empowerment in social and economic. In this case, RGC should consider a reform of legal gender equality. This role very importance duty of government to fulfil the obligation. When there is no legal gender difference that prevelts to only men are able to govern every activities and decision making. For instance, men can own mortgage, but women can’t. As some of studied show, the equal job or starting business will not exit; if legal restriction constrain on women ability which make it difficult to participate in economic.30 Six countries got above average score which is 100 percentage; meaning women on equal within across all eight indicators. France, Belgium, Denmark, Sweden, Luxemburg and Latvia are countries received above score from all indicators.31 Cambodia has constitution as the top law of country which in article 35 laid out that “Khmer citizen of both sex have the right to participate actively in the political, economic, social and cultural life of the nation. All requests from citizens shall be given full consideration and resolution by the State’s organization”.32 Therefore, in article 45 also provided “All forms of discrimination against women shall be abolished. The exploitation of women’s labour shall be prohibited. Men and women have equal right in all fields, especially with respect to those of marriage and family”.33 In both article provide specifically on women to enjoy their right in all status as a citizen of Cambodia without discrimination. Most importantly, women have their right

30

Women, Business and the law 2019-A Decade of reform-World Bank Group, p?

Women, Business and the law 2019-A Decade of reform-World Bank Group, ?

32 Constitution, art 35 (1993) 33 Constitution, art 45 (1993) 31

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia in participate in economic activities. The Royal government of Cambodia use Rectangular strategy phase III and phase IV as its backbone policy to improve women situation and promote gender equality. RGC had already outline its commitment in previous Millennium Development Goals (MDG) on women which particular in third goal focus on education and economic empowerment. The MDG had graduated and United National have introduced Sustainable Development Goal (SDG), in the SDG goal 5 is about gender equality. Cambodia committed to this goal as well.34 National Strategic Development Plan (NSDP) 2014-2018 demonstrated that gender is a cross-cutting problem which need to address in policy and programme related to economy and legal protection. However, the new draft of NSDP 2019-2023 is under consultation as well as Cambodia sustainable development goal 2016-2030 (CSDG). The CSDG will mainstream into NSDP 2019-2013. Another key framework from ministry of Women Affair (MoWA) is Neary Rattanak IV which is the national plan to promote gender equality and women empowerment.

The MoWA is leading ministry that work close all line ministries, collaboration with international organization and local NGOs to mainstream gender work policy and programme. The RGC has established Cambodia National Council of Women (CNCW), this CNCW support ministry of Women Affair to promote the equality of gender throughout the nation of Cambodia.35 B. Legal Implementation Royal Government of Cambodia claim for implementing significant legal framework to fulfil its obligation to the convention. As such of implementation have mentioned in the law, policy and strategy of the RGC. In the Rectangular Strategy phase III; for growth, employment, equity and efficiency have stressed the important of gender equity as key component for nation development, capacity building, and human resource development. Therefore, rectangular strategy phase highlighted the need to further improve gender status for women which are backbone of Cambodia society and economy.36 Cambodia constitution recognized international convention which include CEDAW, and the substance of the convention exits in the law of criminal code 2005 in the chapter 5-artcle 265 t0 273 which punish for those who act of discrimination for both direct and indirect.37 Similarly, RGG have adopted the first nation gender policy in order to provide to sustainable policy framework that align to Sustainable Development Goal (SDG). Based on CEDAW definition of gender discrimination in which providing

34

Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p1 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p1 36 CEDAW/C/KHM/6, p 7 37 CEDAW/C/KHM/6, p 7 35

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia differential treatment to individual on the ground of their sex. The system involve on structure of discrimination again women or men for the contribution to income, having access to economic resource as well as participation in decision-making (National Gender Policy 2018).38 The meeting with sub-national which conducted by CNCW to dissemination and monitor of the implementation on convention; information sharing related to domestic law, legal text, recommendation from the government (total number reach out 35,368 participants which female 25.116). The taking into account of recommendation of Queen mother and RGC on CEDAW with working group by line ministries, provincial department, district, and commune level in the form of training, workshop, newsletter and publication document in website. The strengthening measure of CEDAW among judges, persecutors, and lawyers; dissemination to government official and judicial official throughout curriculum of education system about CEDAW. The curricular is a tool to education all civil servants to have critical knowledge about CEDAW in domestic law context. Ministry of Justice (MJ) have integrated what ministry called a Gender Mainstream Action Plan (GMAP) in its strategic plan 2014-2018. Since the start of dissemination on workshop and seminar on CEDAW during two-year period 2014-2016. The training is about gender and women right related to 3650 participants out of 1204 is female. The participants to the workshop who are lawyers and prosecutors, court clerk, court judge, law enforcement â&#x201D;&#x20AC;MJ official across Cambodia.39 Ministry of Civil Service guideline have now set up quota for hire from 20% to 50% of female in public institution. Similarly, Ministry of Interior (MoI) encouraged to increase female as village leader which appointed as governor by government in the whole country.40 The Bar Association of Kingdom of Cambodia have number of women lawyer increase from 133 in 2012 to 206 in 2017. However, women have equal right to seek legal defence. The constitution of Cambodia 39 provided that there are provision for o legal assistance to the poor people who canâ&#x20AC;&#x2122;t afford to pay service fee of lawyer. In 2019, the government have issued a list of volunteer lawyer into the public with name and their contact number, so people seek lawyer service to have convenience access as their available publicly on social media. The availability of female lawyer to represent female defendant, accused and victim which is vital to society of Cambodia.

IV. PRINCIPLE OF CORPORATE SOCIAL RESPONSIBILITY (CSR)

38

CEDAW/C/KHM/6, p 7 CEDAW/C/KHM/6, p 7 40 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p 2 39

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia As the rising of contemporary business activities become the talk of concerning issue of business or corporate operation impact to environment, society and human right violation. Thus, social corporate responsibility (CSR) has developed more in recent time because of pressure on MNCs arising out of their operation in developing countries and impact of their operation on human right, labours issues and community relations.41 Throughout the evolution of modern concept of CSR can be traced in corporate governance in the United, but some other of the world particularly in European Union has pointed the landmark of vital practice of CSR. Therefore, the discussion point start of emergence in the U.S.42 Some scholar argue that the significant impact of the U.S business role to economy is a place for profitable business for investor including industrial sector. The business is create for profitable as long as offer and improve standard of living by the production and services.43 CSR can be a tool for addressing social impact of business stakeholders.44 Business stakeholder use CSR in the business operation which gain the confident from both investor and customers as recognize good status of practice. In Asia, the concept has attached in the written of classical theological context in Hindu, Confucius and Buddhist scripture; the common practice of CSR with the form of philanthropy, environmental concern, and conceptualize marketing to maximize profit of the business. Olumemi Amao point out that CSR is encompasses the economy, legal and discretionary (Philanthropic) expectations that society has organization at a given point in time.45. Those who support philanthropy emphasis the charitable component of CSR, while those who uphold human rights see CSR as mainly involving labour and human rights issues.46 In 1998 World Business Council Sustainable Development (WBCSD) gave definition that business should be ethically practice for the sake of contribution to sustainable economic development as the same time improving the quality of health condition environment for workforce, family, and local community. Then, in 2012 (WBCSD) mentioned â&#x20AC;&#x153;In 2002 (WBCSD) change definition, " The commitment of business to contribute to sustainable economic development working with employees, their families, the local community and society at large to improve their quality of lifeâ&#x20AC;?. In contrast from WBCSD De Schutte pointed out some of the argument for business approach practice: 1) business establish to serve internal work of company which focus socially responsible conduct 41

Corporate Social Responsibility, Human Right and Legal, Multinational copration in Developing Countries. P. 66, Olumemi Amao 42 Corporate Social Responsibility and Relation to Law- p 54 43 Coporate Social Responsibility and Relation to Law- p 50 44 Corperate Social Resposibility and Human Rights in Asia, Robert J. Hanlon, 2014 45 Corporate Social Responsibility, Human Right and Legal, Multinational copration in Developing Countries. P. 68, Olumemi Amao 46 Corporate Social Responsibility, Human Right and Legal, Multinational copration in Developing Countries. P. 68, Olumemi Amao

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia contribution to improving the workforce in term of loyalty commitment and productivity, 2) environmentally responsible conduct ensures efficient use of resources, 3) CSR encourages voluntary dialogue with a variety of stakeholders and consequently build trust, increasing companies " license to operate" and ensures community support, 4) market will increasingly reward social responsible corporate practice, 5) consumers will buy produces of socially responsible companies. 6) Investor may be more disposed to invest in such companies, 7) public authorities choose to award public contracts forward responsible companies. Likewise, Elkington (2004) agree with some scholar that CSR is to be thought as business model which need to incorporate in economic, environment and social consideration. Elkington gived its name of “triple bottom line” mainstream and the approach as innovative concept due to the lacking of environment discourse in business operation in recently area.47 First of Elkington argument is that industry should adopt conceptual market as vulnerable association which could fall if the social and environmental is weaken (deteriorate). TBL business model as contribute to sustain market throughout what he calls an innovative thinking which move beyond profit- maximization principle and social and environmental risk. Second, the rise of human value which is force private sector to consider the negative impact in where they operate. As corporate scandal spread out to outside which allow activist and costumer demand for accountable. Third, the global shift in the demand for transparency will for industry to take an account for their action. Using social media for transactional movement to hold corporate accountable and elaborate their works. Fourth, civil society organization is more informed on life-cycle of technology with consumers activist demand that TBL is firm influence. Forcing all the business to consider their impact from entire supply chain. Fifth, TBL allow room to engage with controversial NGO that consider to develop successful engagement of strategies. Sixth, TBL thinking could rectify the decision of “time is money” ideology that force industry to have rush decision that risk to society. Finally, the role of corporate governance can break TBL thinking.

TBL need board of director to execute and take action as well executive director without them, TBL will fail. Elkong’s TBL approach has brought into CRS mainstream discourse and the concept use by scholar for decades.48 However, Windsor (2006) saw CRS as three classifications approach. First, Windsor introduce ethical responsibility theory which corporate have duties that are grounded by selfcontrol and humanity. Industry choose not to act on certain negative impact. Beside that business

47 48

Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p7 (30-5-2019) Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p8 (13-6-2019)

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia should behave on altruism sense through philanthropy practice. Second, Windsor suggests that could employ economic approach in CSR. Embracing CSR into public policy and placing profitmaximizing in the centre of social responsibility. Third, Windsor brought about corporate citizenship as a competing view of CSR which it wants to abandon the language of CSR by replace artificial citizen that bounded by duties and rights. 49 For Carrol (1979), business should adopt Social Performance Model that seek company responsibility performance, provide clear goal for social responsibility behaviour and create a response philosophy in order to meet the objective.50 Carrol saw the problem that non-mutual exclusive component between business sector and society. He explained that economic responsibility must be firm; otherwise there is no business in the first place. Business operate for profit and engage with the activities that community demand. Second, business should be responsible in the legal manner to fulfil the social contract with the society. The industry of business should adhere to the legal and regulation in their operation of jurisdiction with the balance from profit making. Third, he saw ethical responsible which is non-codify requirement on the way business run in the society. When it comes to define the word ethical itself is very hard. The dialogue will determine business to raising issue and giving society to change expectation. Lastly, he see the careful responsibility which business must be use the best measure while approaching situation that no clear legality and ethical.51 Therefore, Wood’s (1991a, 1991b) mentioned about corporate social performance (CSP) which incorporate with Carrol approach as well. The purpose of CSP is to reduce corporate harm; while encourage industry to contribute to well-being for community. For Wood, business accepted responsibility which free themselves for disapproving stakeholders. Wood explains her ground break CSP model that, “Principle of social responsibility…at the institution, organizational, and individual levels; process of social responsiveness are show to be environmental assessment, stakeholder management and issue management; an outcome of CSP are posed as social impact, program and policies” Wood, 1991a, 1991b; 69).52 Another theoretical approach to CSR is what they call ‘Public Responsible Framework’ which industry operate an interpenetrating, organic and shared environment in society. The public responsibility demand industry position within community public policy conversation.

49

Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p8 (13-6-2019) Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p8 (13-6-2019) 51 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p9 (13-6-2019) 52 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p9 (14-6-2019) 50

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia

V. CSR ACTION AREAS WITHIN THE PUBLIC POLICY OF THE GOVERNMENT Government have strong responsibility in action for protecting citizen from corporate harm. In other word, government must employ CSR action to its public policy. The action can form with four components. First, government intervention in awareness-raising that provide award scheme, information platforms, campaigns, training and capacity building measures, disclosure of payments to public institutions, naming poor performers, labelling and toolkits.

These tools for government to disseminating Corporate Responsibility (CR) policy for business to adopt. Second, partnership is an instrument that lie on the heart CR public policy. The instrument combines an expertise, resource and competencies in public sector for business and social actor to address the concern within CR agenda. For example, multi-stakeholderâ&#x20AC;&#x2122;s involvement, public-private partners, collective action efforts and roundtable dialogue. Third, soft law intervention to promote CR awareness. The Soft law is non regulatory intervention to promote universal principle such as UN global compact, corporate government codes, codes of conduct, implementation of international principle, and guideline for CSR reporting, tax exception for philanthropic and expert credit boards. Finally, mandating instrument is to set minimum standard for business operation that relevant to CR policy and agenda on labour law, anti-corruption, and environmental protection. Company laws, regulations for pension funds, stock exchange regulations, law on CSR reporting, penalties for non-compliance are enforce corporate responsibility activities. CR policy is a tool for measuring company obligation and report CR associated business activities or initiative private partnership.53 Significantly, the five cross-cutting approaches help to address human right, health, poverty, and environmental issue.

However, in the intervention of government has the top five policy action as in recent year has increase economic downturn affecting to society at large to demand transparency and accountability from business. First, corporate governance structure is the foundation in ethical guideline to combat bribery, and establishing a strong relationship with relevant stakeholders.

When having pressure from corporate government which require the rising number of social responsibility of investors to have ethical guideline in its structure. For example, in the case of Europe is that market share has in increase to 17.6 percent of all assets through social responsible investments (SRIs). The role of government is to introduce ethical criteria linkage to governance pension fund, public loan guarantee or public procurement. This can promote through principle

53

The Role of Governments in Promoting Corporate Responsibility and Private Sector Engagement in Development, United Nation Global Compact and Bertelsmann Stiftung, 2010, p17

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia for responsible investors (PRIs). The developing of code of conduct can also introduce in associate within the business. Second, reporting and disclosure is about the honesty in internal and external communication of the company. The communication within the companyâ&#x20AC;&#x2122;s stakeholders on company value, activities, challenges and success to enhance industry reputation.

Therefore, there is concern on human right violation, water scarcity, and corruption which lead to increasing of CR policy. The policy requires to report which include legal requirement for mandating report and disclosure as well as creating voluntary report. Third, community involvement and development is growing worried about development issue and the delivering of economic good for both risk and opportunity. The company can contribute to community and addressing issue as a whole. In particularly in the countries where is lacking of mechanism, scare resource and political will be in the public. Forth, responsible management and production is a core of business operation. If there is lacking of attention in this area. Human right and environmental problem is high. At the same time, opportunity is high if the company pay more attention on human right and do no harm on to environment. Lastly, responsible consumption is the pressure that engage business to adopt social responsibility business practice as the growing tendency of consumers. The consumers looks not only price, quality and service, but increasingly about environmental and social â&#x20AC;&#x153;footprintâ&#x20AC;? as well.54

V. CONCLUSION AND RECOMMENDATION A.

Conclusion

Cambodia women still faces norm and tradition from the past until nowadays that lead to obstacle for them to be confident in becoming as entrepreneur. As the society provide more value to men to decide economic activities; both gender obstacle and old stereotype roots in Cambodia society. Moreover, women are less confident and lacking of technical skill. Even-though government has law and regulation in place but the lacking implementation still far behind to promote the role of women entrepreneur as none of mechanism specifically forward women entrepreneurs. Women be able to contribute more good activities for society in the form of CSR as they are more empathy which they use to take of their children. In doing business, women can apply the same method to take of employee, society and environment in the operation of the business.

54

The Role of Governments in Promoting Corporate Responsibility and Private Sector Engagement in Development, United Nation Global , Compact and Bertelsmann Stiftung, 2010, p19-21

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia B.

•

Recommendation

Legal gender different are prevalent. The law restriction constraint woman’s ability in

decision making which they may not decide to involve in the economy if the law makes more difficult for them. For example, the process of register business and dealing with tax department far more complex.

•

CSR framework doesn’t adopt by the royal government of Cambodia Yet. CSR

framework is tool for pushing business to not just profit oriented, but forming transparency.

•

There is no proper mechanism or specific project that focus on women entrepreneurs

from government besides the promising to increase budget for capacity building and soft-skill training.

•

Lacking of school curriculum in entrepreneur and social corporate responsibility (CRS)

in high school.

•

Award those women entrepreneur who apply CSR policy in their management operation

•

Public forum on women entrepreneurs and CSR raising awareness.

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES

Asian Development Bank (ADB), Country Partnership Strategy Plan: Cambodia, 2014-2018.

Chal Sopheap, Time for Cambodian women to take the lead, Opinion, Phnom Penh Post at https://www.phnompenhpost.com/opinion/time-cambodian-women-take-lead ( accessed January 12, 2019) https://www.researchgate.net/publication/255700427_Corporate_Social_Responsibility_A_Way_Towar ds_Women_Empowerment ( accessed January 12, 2019) Empower Women through Fair Trade? Lesson from Asia ( accessed February 2, 2019) South Easth Asia Globe: http://sea-globe.com/cambodia-businesswomen (accessed February, 10, 2019) Cambodian Yearbook, Comparative Legal Studies, Special Edition in Human right, 2015. P39-55 Chhoeun, Thavy, Panha Sok, and Clodagh Byrne. "'Citadel of Women': Strengthening Female Leadership in Rural Cambodia." Gender and Development 16, no. 3 (2008): 535-47. http://www.jstor.org.vlib.interchange.at/stable/20461301 http://www.unwomen.org/en/what-we-do/economic-empowerment/facts-and-figures (access February 9, 2019) Olumemi Amao, Corporate Social Responsibility, Human Right and Legal: Multinational Coperation in Developing Countries, 2011.

"The Role of Governments in Promoting Corporate Responsibility and Private Sector Engagement in Development, Chapter 3: Good policy options to foster CR Unite Nation Global Compact, Bertelsmann Stitung" (accessed February 1, 2019) Key gender statistics in Cambodia (as of January 2014 by Ministry of women affair ( accessed February 1, 2019) https://www.theguardian.com/commentisfree/2016/feb/05/women-empathy-peoplemore-self-centred-research (February 1, 2019) Corporate Social Responsibility and Relation to Law (accessed November 20, 2019) CEDAW/KHM/6 (accessed February 19, 2019) Women, Business and the law 2019-A Decade of Reform-World Bank Group (accessed March 8, 2019) https://www.khmertimeskh.com/88356/businesswomen-convene-find-solutions-opportunities (accessed March 13, 2019) Sixth periodic report submitted by Cambodia under article 18 of the Convention, due in 2017 (accessed March 18, 2019) A/HRC/WG.6/32/KHM/2 (accessed March 21, 2019) Corperate Social Resposibility and Human Rights in Asia, Robert J. Hanlon, 2014 M. Walsh, PROJECT ON WOMEN’S RIGHTS IN CAMBODIA: LICADHO – UQAM PARTNERSHIP, REPORT ON THE STATUS OF CAMBODIAN WOMEN Domestic Violence, Sexual Assaults and Trafficking for Sexual Exploitation. (2007) p9–10

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The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia ICCPR Preamble p.13 13/5/2019 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of foreign Affair 13/5/2019 CEDAW/C/KHM/6, p7 (accessed February 2, 2019) , Robert J. Hanlon, Corporate Social Responsibility and Human Right in Asia 2014

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