ASEAN Legal Information Center: Managing Expectations
by Ibrahim Sjarief Assegaf1
Introduction
This paper will firstly describe why access to legal information is critical in any
jurisdiction, and, given the complexities of multiple jurisdictions, in the ASEAN
context. This paper will illustrate the challenges in providing access to primary legal
sources. A mini needs analysis follows, arguing that targeting all areas is futile as it is
resource incentive and instead efforts should concentrate on select areas which are in
demand by disadvantaged target groups. This paper will also identify the important
elements and approach to establishing a legal information center. Lastly, this paper
offers some recommendations on the establishment of an ASEAN legal information
center and what role ALA should play.
Access to Legal Information
Any rules based democracy relies on the presumption that its citizens (or residents)
know the law. “Ignorantia juris non excusat or ignorantia legis neminem excusat
nobody is thought to be ignorant of the law.”2 The doctrine, however, presupposes
such laws have been properly published and distributed, without which the
assumption would not be justifiable. Public access is normally guaranteed by
requiring any laws, regulations, decree, or any other legal instrument which is binding
on its subjects, to be published in official publications, ie gazettes or reports,
published and made available to public by the government or accessible via the
internet.
Public Access to Law: Gazettes and Reports
Nonetheless, despite the doctrine being applied in all jurisdictions, many do not
maintain regular, reliable and accessible publications. Indonesia for example. Efforts
to build a national legal information center commences in early 1970s,3 marked by the
National Legal Development Agency (Badan Pembinaan Hukum Nasional – BPHN)
and University of Indonesia commencing development of the Legal Documentation
Center (Pusat Dokumentasi Hukum - PDH).4 In 1999 a presidential decree was issued
establishing Legal Document Network (Sistem Jaringan Dokumentasi dan Informasi
Hukum - SJDIH), in which BPHN acts as national network center and the provincial
government in each respective provinces. 5 However, participation by national and
regional governments to the network remains inadequate.
Since 2004 the legal framework requires statutes and regulations to be enacted by way
1
Partner with Assegaf Hamzah & Partners, President Director of PT Justika Siar Publika, owner &
operator of www.hukumonline.com. Tracy Tania, associate with Assegaf Hamzah & Partners,
contributed to the research for this paper.
2
Or Nemo censetur ignorare legem: nobody is thought to be ignorant of the law in common law
doctrine, which roughly translates as ignorance of the law does not excuse.
3
See http://www.hukumonline.com/berita/baca/hol17711/sudah-puluhan-tahun-membangun-jaringaninformasi-hukum accessed January 2012.
4
See http://www.hukumonline.com/berita/baca/hol17711/sudah-puluhan-tahun-membangun-jaringaninformasi-hukum
5
Presidential Decree No. 91 of 1999 on national network of legal information and documentation.
1
of publication in the official gazettes/reports. 6 The national and local governments are
required to disseminate the laws/regulations published in the State/Regional Gazettes
and Reports (together Gazettes/Reports),7 including through internet based electronic
media.8
Gazettes/reports
State
Gazette
Negara)
Laws/regulations
(Lembaran
Statutes,
government
regulations,
presidential
regulations and other regulations that must be published
the gazette9
State report (Berita Negara)
Ministerial regulations and other regulations that must
be published the gazette10
Regional
Daerah)
Regional regulations
Regional
Daerah)
Gazette
Report
(Lembaran
(Berita
Regulations issued by Governor, Regent/Major
Despite the legal framework, most government agencies 11 did not respond
accordingly in part due to lack of clarity on the scope of publication and the
responsible agencies. 12 It was only in 2007 a presidential regulation was issued
confirming the scope of the Gazettes/Reports and responsible agencies.13
Practically all ministry or regional governments have their own websites through
which some laws and regulations are supposed to be published. 14 However, these
6
Minister of Law and Human Rights are tasked with enacting/promulgating (as applicable) the national
law/regulations in State Gazette and State Report, and the Regional Secretary for the regional
regulations (Articles 19 and 22 PR 1/2007 respectively).
7
Article 29 Presidential Regulation No. 1 of 2007 on enactment and publication of laws and
regulations (“PR 1/2007”).
8
Article 32 PR 1/2007.
9
Article 46, Law No. 10 of 2010 on drafting of laws and regulation (“Law 10/2004”). The law does not
specify what are regulations must be published in the state gazette.
10
This is a peculiar way to regulate as only regulations issued by the Ministry of Finance and Bank
Indonesia specify that they are to be published in the state report. Hence, practically no other
regulations are published in the State Report nor any other official publication for that matter.
11
Some exceptions include Bank Indonesia and the Ministry of Finance, where both have rather
consistently (voluntarily) published their regulations in the State Reports pre-2004 and through their
websites.
12
This is evident from a memorandum of understanding between ministries responsible under which
each commits to notify each other of new regulations after enactment. See
http://www.hukumonline.com/berita/baca/hol17325/dari-perpres-no-1-tahun-2007-hingga-notakesepahaman. In a news report, as of 2007 MOLHR acknowledged that it has not commenced
publication of state gazette and reports due to unresolved overlapping authorities with relevant offices.
See http://www.hukumonline.com/berita/baca/hol16130/depkumham-belum-terbitkan-lembaran-negara
13
PR 1/2007.
14
According to guideline issued by Ministry for Communications and Informatics (Kominfo),
publishing of regulations is one of the main requisites of Government websites. See Presidential
Instruction No. 3 of 2003.
2
resemble more of incidental publishing initiatives as opposed to systematic
publication and dissemination of information, including the Gazzettes/Reports.15
In recent years, the publishing of State Gazettes and Reports improves significantly.
Since 2007, 60% ministries have promulgated majority of their regulations through
the State Reports maintained by MOLHR which publishes them through its website.16
Despite such improvement, the collection remains inadequate. 17 Unfortunately
publishing of Regional Gazettes and Reports remain patchy and majority of them
remain inaccessible and very few are deposited with MOLHR.18
Similar issues apply to access to court decisions. Previously very few court decisions
were published through annual compilations by the Supreme Court, periodicals judges
associations and other incidental publications/compilations by commercial publishers.
These were done managed haphazardly without clear criteria of selection of the
published cases.19 In mid to late 2000, the Indonesian Supreme Court adopted several
initiatives geared toward publishing majority of its recent decisions from its website
(though to date the publishing are yet to be done in timely and consistent manner)20 as
well as adopting and implementing a rule on access to court information which
promotes access to variety of court related information, including court decision.21
The Indonesian Constitutional Court has also consistently published verbatim
transcript of its proceedings as well as decisions in a timely manner.22 It also initiated
a legal information center together with several organizations.23
Despite an abundant of access to court decisions as primary source, there remains
very little effort in analyzing those decisions and producing secondary sources.
Lawyers, academia and judges rarely cite published cases hence continuing
uncertainty on how laws are enforced. 24 In conclusion, despite growing primary
materials available online, production and publishing of secondary materials remain
sorely lacking.
15
Edwi Arief Sosiawan, Evaluasi Implementasi E-Government Pada Situs Web Pemerintah Daerah Di
Indonesia : Prespektif Content Dan Manajemen,
http://edwi.dosen.upnyk.ac.id/manajemen%20egov.pdf. He found that, despite clear guidelines from
Kominfo, majority of regional governments do not publish regional regulations.
16
See http://www.djpp.depkumham.go.id/database-peraturan/peraturan-menteri.html (accessed January
2012).
17
MOLHR itself for example, cited such inadequacy as the main culprit for difficulty in synchronizing
and harmonization. See http://www.hukumonline.com/berita/baca/lt4d0989a80b9af/minimnyaidatabasei-peraturan-persulit-harmonisasi-hukum (accessed January 2012).
18
See http://www.djpp.depkumham.go.id/database-peraturan/peraturan-daerah.html (accessed January
2012).
19
Sebastiaan Pompe, The Indonesian Supreme Court: A Study of Institutional Collapse, Cornell
University Press, Studies on Southeast Asia No. 39, 2005.
20
See http://putusan.mahkamahagung.go.id/, which now holds over 30,000 recent Supreme Court
decisions of 2008-2012. Per 2010, the site recorded almost 500,000 visits (See
http://www.mahkamahagung.go.id/images/LTMARI-2010.pdf accessed January 2012).
21
For general overview of the initiative, see the Supreme Court’s 2010 See
http://www.mahkamahagung.go.id/images/LTMARI-2010.pdf accessed January 2012.
22
See www.mahkamahkonstitusi.go.id. Decisions are published as and when they are handed down.
23
See http://portal.mahkamahkonstitusi.go.id./eLaw. Unfortunately the collection is limited to primary
sources and they are not regularly updated.
24
Sebastiaan Pompe, http://www.thejakartapost.com/news/2011/03/29/legal-uncertainty-causedadvocates.html (accessed January 2012).
3
Existing Services, Models in ASEAN
Many of us have enjoyed access at some time to established global legal database
providers such as LexisNexis, Westlaw, to name two most prominent providers. They
aggregate variety of databases depending on (i) jurisdictions – international, regional,
national and state levels; (ii) type of publications – precedents (court decisions)
statutes, regulations, treaties, journals, practice manuals, magazine, newspapers, etc.
The convenience of these providers is the vast collections, research functionalities and
tools so that it is easy to locate materials on similar subject matters.
These providers are, naturally, paid access either by subscription or others. Many
academic, judicial, political institutions or law practitioners generally have budgeted
access to these providers.
Similar services exist in several ASEAN countries, where the above global providers
operate, such as Singapore, Malaysia and the Philippines. Indigenous efforts in few
jurisdictions offer similar servicer such as Lawphil (the Philippines), a free service
supported by a foundation, and Lawnet (Singapore), which, although a
paid/subscription based services, is owned and managed by commercial publishers,
but rather by the Singapore Law Academy. hukumonline (Indonesia) offers a
combination of free access and paid access for practitioners.
Another recent but most notable addition is the AsianLII, a member or independent
association of free access legal information movement/providers. AsianLII aggregates
materials already available in digital form by cooperation with the publishing
organization and republish them through its own website.
The main key in distinguishing these providers is the materials published – data (such
as statues, court decisions) or also information and knowledge (journals, case note).
While many providing the former are free services, most (if not all) the latter are paid
services to justify the effort in producing or procuring them.
ASEAN Legal Information Center - ASEAN LINKS
Many ASEAN texts call for harmonization of rules in ASEAN countries to bring
them in line with ASEAN objectives. 25 Conspicuously, despite calls for greater
familiarity with other ASEAN member countries legal systems, the response of
ASEAN law ministers is the ASEAN Legal Information Network System (LINKS).
The idea of LINKS was incubated in the second meeting of ASEAN Law Ministers,
Kuala Lumpur, 1993.26 In addition to other means of enhancing legal cooperation in
ASEAN such as exchange sharing legal materials, study visits by law officers, the
meeting identified the need to set up a legal information system to facilitate
dissemination of laws of the member countries and requested member countries to
consider the feasibility of creating ASEAN Legal Information System. The 1996
meeting requested ASEAN Secretariat to publish hypertexts to each member
25
Declaration of ASEAN Economic Community Blueprint, 20 November 2007 and ASEAN Leaders
Joint Statement on ASEAN Community in a Global Community of Nations 18 May 2011.
26
Joint Communique the Second ASEAN Law Ministers Meeting, Kuala Lumpur, 1993. See
www.aseansec.org/177738.htm (accessed January 2012).
4
countries’ databases within ASEAN website as and when any of those databases is set
up. 27 The 1999 meeting encourage member countries to provide necessary
information to ASEAN Secretariat to compile and publish the hypertexts. That
meeting also tasked the ASIAN Secretariat to coordinate and compile member
countries’ legal research materials in select areas and each member countries is to
nominate a legal information authority to facilitate the exchange of information and
act as repository of ASEAN legal information for its respective government.28
Similar calls reappeared in several ministerial or senior officer meetings and action
plans.29 However, unlike the other areas of legal cooperation, discussion on LINKS
conspicuously absent from the 2011 ASEAN law ministers meeting.30
At present the ASEAN secretariat website maintains pages dedicated for LINKS,
containing hypertext links to legal websites in ASEAN member countries. However
the list does not do justice to the plethora of initiatives within member countries.31 A
call to officers at the general counsel office of ASEAN Secretariat revealed limited
human resources and difficulty in accessing materials and managing the links as
primary cause.32
ASEAN: A Mini Needs Analysis
Now that we have established that a legal information center would be desirable,
certainly it is impossible to create a complete center overnight. The next question is
who should be the main and ancillary targets so that priority may be set.
For the purpose of this paper, allow me to simplify ASEAN as a means to promote
free movements of, among others, people, goods & services and capital, within the
ASEAN member countries.
Targeted Users
While any one will, at one time or another needs access to legal information, some
groups have greater challenge than others. I take the liberty to categorize the target
market of ASEAN legal information center to include the following and their likely
need of legal information:
(i)
Regulators and academia. These include faculties and students of law
schools and regulators;
(ii)
Practitioners (including regulators, lawyers). These include lawyers
advising their clients on matters or cases in other ASEAN member
27
Joint Communique the Third ASEAN Law Ministers Meeting, Manila, 1996. See
www.aseansec.org/177738.htm (accessed January 2012).
28
Joint Communique the Fourth ASEAN Law Ministers Meeting, Singapore, 1999. See
www.aseansec.org/177738.htm (accessed January 2012).
29
See www.aseansec.org/5616.htm, www.aseansec.org/16572.htm, www.aseansec.org/19890.htm
(accessed January 2012).
30
Joint Communique of Eights ASEAN Law Ministers Meeting, Phnom Penh, 2011. See
www.aseansec.org/26715.htm (accessed January 2012).
31
See http://www.aseansec.org/11172.htm (accessed January 2012).
32
Personal communication, January 2012.
5
countries or judges reviewing dossiers involving laws of other ASEAN
member countries;
(iii)
Business. These include companies intending to trade with
counterparts, invest or generally do business in other ASEAN member
countries;
(iv)
General public. While this group may be very diverse, focus should be
paid to least likely able to afford legal assistance independently. These
may include work force working or living in ASEAN member
countries (migrant workers or other skilled work force), individuals
with spouses from other ASENA member countries.
Each of these groups has distinct need of legal information. The first group and to a
lesser extend the second groups, which comprise of members of ALA, need access to
materials for comparative law purposes in general. The second group needs access to
regulatory materials as well as interpretation and how they are applied. On the other
hand, the latter two groups demand more practical information readily applicable to
their specific need.
The first three groups should have some own resources so that they are able get the
necessary access without special assistance. As discussed above, the fourth group
should be a priority as they are one least likely able to afford legal assistance
independently.
Targeted Areas of Law
As there are many areas of law, targeted areas of law should be in line with the target
users as discussed above. Internet users associate themselves with internet resources
in which they can find the information they need. Hence it is important to
communicate with users the targeted areas and the planning to cover the other areas of
law. Rather than having the center publishes cover many areas of law, it is important
to start with few areas with in-depth coverage. In my experience the most sought out
legal information for general public focus on family law (marriage, divorce, custody,
marital assets) and labor law (such as employment contract, employees’ rights,
termination and severance, etc).
Targeted Materials
Many assume that establishing a legal information center should focus on primary
data such as law and regulations and court decision. While this certainly should form
the basis of such center it is by no means should be the focus for several reasons.
Firstly, at present there are many websites that publish these primary data. Hence, the
center should publish a research guide identifying and evaluating the sources of these
primary data and include hypertext link to them.
Secondly, while these primary data may be important for the first and second groups
identified above, it is less so for the third and fourth groups. Most of these groups’
target users are generally not equipped to access the data for variety of reasons:
minimal knowledge of law generally, and subject matter specifically. Hence, most (if
not all users) come to expect that they would find readily available knowledge which
they can then apply to their own problems/issues.
6
This is in line with general need of internet users with the growing materials being
published online. Most users, particularly those unfamiliar with the subject matter,
need a starting point to conduct their research so as to enable them to access selected
few credible and complete information.
In short a comprehensive needs analysis should be undertaken to identify the legal
materials need by the targeted users and whether they are already available and the
center should focus on information not already available elsewhere.
The Language Issue
With majority of ASEAN members countries having diverse ethnical and racial make
up, language remain an issue domestically. While select ASEAN member countries
legal practice use English as the main language, many others use other native
language and would remain so.
A traditional approach is to translate into English the materials in all other language,
such exercise is resource intensive. I would argue that with comprehension of English
as well as translation software developing very rapidly, there is little incentive to do
so. Instead, efforts should focus on encouraging submissions or compiling materials
already translated into English.
Elements of a Legal Information Center
This section discusses what the required elements of an internet based legal
information center are.
Information Technology
Many believed the key to establishing a viable legal database lies with the information
technology. While this has merits, there is no shortage of IT systems on offer. There
is now a plethora of resources available – affordable servers and online storage,
affordable or even free database applications downloadable through the internet. In
addition, there are many law specific aggregator services such as AsianLII which
compile, index, store and publish in their website materials which are made available
to them.33 Certainly, there are similar initiatives in each member countries. 34 In short,
information technology should not be an issue.
Contents
In my view the main culprit is contents without which no state of the art information
technology would be of any use. In respect of Indonesia, the availability of contents in
so far as laws and regulations as well as court decisions are concerned has been
discussed above. Note however, that these are mainly primary data or sources
whereby the materials are published as is. There is a limited resource of information
on those data to help users making sense of them. For instance, whether a particular
law has been amended or repealed, whether laws governing similar matters have been
33
See www.asianlii.org, which is part of WorldLII, an independent movement promoting free public
access to law (www.worldlii.org). AsianLII is supported by AusLII, similar initiative in Australia
(www.austlii.edu).
34
For example, in 2002-2005 the Indonesian legal portal www.hukumonline.com published statues,
government regulations provided by the Indonesian State Secretariat. See
http://www.hukumonline.com/mitrakami.
7
issued, or whether implementing regulations have been promulgated on particular
matter. The same applies with court decisions. Despite the increasing number of
decisions published only, there is very little effort on analyzing the decisions and how
they compare with others on similar merits. Hence, any legal research becomes time
consuming and inconclusive at best.
More importantly, there is very little knowledge being published where legislative
intents on a particularly statute is discussed. Or the implementation, interpretation or
discourse on how the law should be implemented and experience surrounding them.
Therefore a significant discord exists between the law as written in statute books and
its interpretation as well as implementation.
Resources, Initiatives and Organization
Establishing an ASEAN legal information center would surely involve resources, the
extent of which depends on the approach. Aside from information technology
elements discussed above, many information centers were established or incubated
through a project funded by government or donor agencies. The ability of these
centers in mobilizing resources determines whether it can survive once the project is
completed. Many were unable to do so hence the centers were unable to continue
developing or even cease operation. The key here in my view is mobilizing
involvement of community through collaborative approach (discussed elsewhere in
this paper) as well as embedding the centers and their activities into the workings of
related organizations. AsianLII, for instance, is associated with AustLII, hosted by a
university in Australia, with only one full time staffs and several lecturers actively
seeking new materials as addition to AsianLII.
Approach: Collaboration
Majority legal information centers employ a one way publishing methods where a
handful of contributors or editors produce of compiles the materials, edit them and
decide which are worth of publishing. While this appears to be ideal as it promotes
the accuracy and credibility of the materials, it is very resource intensive and the
growth of materials would be limited.
Instead, a recent alternative which is more prevalent and much more efficient is
collaborative approach such as wiki. The center’s community or users generally
should be encouraged to actively write and edit or compile materials and publish them
on the center’s website. The community would organically develop authorities
depending on one’s activism. This model seems viable given ALA’s membership or
leadership make up such that they should be able to motive organizations which they
lead or belong to. In addition, lawyers need referrals to develop their practice and
activism in collaborative legal information center should add to their credentials.
Recommendations
First and foremost, do not embark to establish a new ASEAN legal information center
without a proper needs analysis as to who are the main target users and by extension,
the targeted materials. It is critical that the center
ALA has unique membership and leadership as they are in position to influence their
respective organizations to contribute to the center. First and foremost each ALA
member can contribute by promoting public access to complete and sustainable
8
information is available in each jurisdictions and respective organization. In addition,
they may as well as promoting in producing legal materials.
The following are some concrete possible contributions by ALA members, leadership:
1.
Judges:
(a) Writing decisions: ensure judges clearly argue the case and properly cite
relevant laws/past decisions/precedents. These ensures easy search to
(b) Publishing and access: (i) ensure that your judicial organizations publish
judicial decisions in your jurisdictions in consistent and regular manner; (ii)
provide public access to them; (iii) encourage members of the bench to write
analysis on decisions; (iv) provide access to third party publishers so they can
re-publish the decisions through their publications. If your judicial
organizations also produce other materials, eg bench books, research reports,
publish them as well.
2.
Academicians:
(a) Ensure that your educational organizations promote faculties and students to
conduct research and publish all research reports, thesis, dissertation and
other academic products;
3.
Lawyers:
(a) Probono: consider mandatory pro bono work to also include, aside form
actual representation, publication of legal knowledge. While representation
should remain the base, publishing transcends one particularly client and
arguably would benefit more of the same recipient pro bono targets; and
(b) Encourage member of the bar to write experience and knowledge on law.
9