LEGAL OPINION Employement Policies in Facing ASEAN Economic Community (Moh. Relfy Al Ghafani)1 I.
INTRODUCTION 2 ASEAN Economic Community is an economic integration between countries in the ASEAN territory, in which there is a free market-trade system amongst the ASEAN country, that had started in 2015. But there are still rooms for improvement. One of them is concerning the power of labor policy which exists in order to face the inflow of foreign labor to Indonesia. Why? Because the law that regulates this issues, act. No. 13, year 2003, is not yet fully optimized in its application of the policy that concerns the improvement in quality of the Indonesian labor. The lack of labor quality in the preparation to face AEC is raising concerns that in the near future, that there will be exploitations in Indonesia’s vocations, especially in sectors that concerns natural resources such as agriculture, coal and minerals, etc. And also in nonindustrial sectors such as accountant, engineers, and even law professionals. 3Whereas if we take a closer look into the 2nd purpose of the Indonesian constitution, 1945, we can understand that the country is actually responsible for increasing the prosperity of its people, so the right for vocations and a feasible life is a constitutional right for every citizen of this country, because by having a decent vocation, citizens can improve their quality of life. Because of the many times that this act had been verified by the court of constitution, there are articles that had been severed in its verification process, resulting in the need of readdressing in this matter. With the cancellations of several articles such as the article 158 (clause 1 and 2), article 155 (clause 2), and article 158, the presence of act 13 2013 concerning labor issues is not whole anymore which resulting in the need of readdressing. However, changing or
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Staff internship VP AA & T ALSA NC INDONESIA
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Seputar Pengertian, “Pengertian dan Karakteristik AEC”, diakses dari http://seputarpengertian.blogspot.co.id/2014/08/Pengertian-karakteristik-masyarakat-ekonomi-asean.html pada tanggal 23 Januari 2017 pukul 19.07 WIB. 3
Rizkie Library, “AEC dan Ketenagakerjaan Indonesia”, diakses dari http://rizkie-library.blogspot.co.id/2015/09/AECdan-kebijakan-ketenagakerjaan.html pada tanggal 23 Januari 2017 pukul 19.30 WIB.
replacing acts concerning labor issues, is not as easy as flipping palms. The plan for revision for this act had actually been issued back in 2006, but the government took this plan back because at that times, there are simply no correlation of needs between labors and investors. This problem also caused a setback in the revision of the labor act because it was difficult to find the ideal ordeal between the need of labors and investors. According to Radbruch’s theory, a new regulation or act qualifies if it meets three requirements. Philosophically it must result in justice, sociologically it must be beneficial, and Juridically it must be able to create certainty (Satjipto Rahardjo 1980). The creation of the act concerning labor issues should be purposed to create peace and satisfy the three requirements. The government should be responsible to protect, and to give protection to Indonesian labor and should not be bent to the needs of capital owners. In order to face AEC, the act concerning labor issues needs to be improved in order to meet the three requirements. II.
PROBLEM FORMULATION The application of labor policies in order to face AEC according to the perspective of law professional, advocate.
III.
DISCUSSION Related to the fear of exploitation towards professional work, professional in legal department which become one in the most important aspect that must be observed in ASEAN Economic Community life. This is because the increasing of capital flows and foreign investment, especially among business people in ASEAN member country. Logically, it will follows by the enhancement the needs of law consultant. This profession is really important in giving sign and legal advice, including assistance which is need by international business people to be able to do their business activity correctly and protected by Indonesian government. And so when the business people in Indonesia needs it to develop the activity and production, for example Indonesian entrepreneur wants to do agreement with Thailand entrepreneur. Automatically, Indonesian entrepreneur must have legal representation who is understand about law in Thailand.
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Based on Act No. 18 year 2003 concerning advocate, the presence of foreign
advocates in Indonesia basically not prohibited. 5Article 23 the presence of act concering advocate only limit the authority of foreign advocates, which can only provide advice or legal opinion based on foreign law. As well as the existence of foreign advocates in Indonesia, it only limited to the position as employee or experts in a advocate office in Indonesia. In other definition, foreign advocate is prohibited to do litigation nor open their representative office in Indonesia. The definition of not be able to do litigation directly and not be able to open representative office in Indonesia for foreign advocates, has an obscure AECning if it is face by the fact that has been exist in Indonesia for a long time, where the collaboration from foreign advocates with the law offices in Indonesia as seen is a relation among employer and employee. But as seen as partnership relation, especially with the obscurity from “in association with” words. Which has been constantly evolving and, as it becomes a necessity to boost the popularity of the office of the law itself. The narrowness of definitions about foreign advocate, added by the lack of supervision in the application of Act. No. 18 2003, associated with the decree issued by the department of law and human rights No. : M.11-HT.04.02.TH.2004 concerning the requirement and the procedure in order to use foreign advocate and also the obligation to give free legal coat for the purpose of research and education is raising concerns that while the AEC is steadily growing, the policies that regulates laborspecified problems, especially the ones concerning law professionals is weakening, resulting in a more intense selections that would occur to law professional prospects. The preparations of law-professional prospect, is not only the burden of government and current legal acts. The communication between Indonesia’s advocate organization, and other entity that are associated with law prospects, in this case Universities and Campuses in which those prospects are educated, is also sharing the burden. This had started in most advocate organization, through a recruitment 4
Hukum Online, “Mempersiapkan Advokat Indonesia dalam Menghadapi AEC Oleh: Dr. Ricardo Simanjuntak, SH., LLM., ANZIIF.CIP.” diakses dari http://www.hukumonline.com/berita/baca/lt55dd2ffe102e5/mempersiapkanadvokat-indonesia-dalam-menghadapi-AEC-br-oleh--dr-ricardo-simanjuntak--sh--llm-anziifcip pada tanggal 23 Januari 2017 pukul 19.45 WIB. 5
Undang-Undang No. 18 Tahun 2003 tentang Advokat
program for advocate prospects of Indonesia with the no CCN commitment. Attitude that prioritize quality with “no hesitation” qualities give hope that the future advocate would possess the academic basic, and the comprehension of ethical codes of being a professional advocates. The increase in resource advocates Indonesia toward the global standardization has also been done by building a pattern of continuing education as well as efforts to involve an advocate of foreigners who have been part of a member organization of advocates - and also have attended the course and pass the exam code of ethics advocates Indonesia - to share knowledge and experience with as many advocates Indonesia with respect to the role of foreign law in the activities of international law (commercial or non-commercial), well within the sovereign territory of Indonesia and as a consequence of the ASEAN single identity that 6one vision, one identity and one community. So, in the application and supervision of policies concerning labor issues especially in the field of professional law personnel, in this case the advocates, the must be correlation between Act no. 13 2003, concerning labor issues and the decree issued by the department of labor and local transmigration No. : KEP-20/MEN/III/ 2004 concerning the authorization to use foreign labor and other relevant act concerning professionals. In this case, the act concerning advocates, Act no. 18 2003, associated with the decree from department of human rights No. : M.11HT.04.02.TH.2004 concerning the requirement and the procedure in order to use foreign advocate and also the obligation to give free legal coat for the purpose of research and education. IV.
CONCLUSION AND SUGGESTION AEC had to be faced, also included lawyers as professionals in the field of law. Currently the legal service is not yet open and still underestimated by the public, but someday people will realize how important the law itself. Because the role of advocate increasingly important and increasingly inseparable from the whole process and legal developments. The areas that are already open as tourism, construction,
Pasal 35 dan 36 The ASEAN Charter and The ASEAN Vision 2020, www.asean.org/news/item/asean vision2020 6
medical and so it must have involvement with lawyering related to legal documentation and agreements that will bring the role of lawyers. This is where the Indonesian advocate is required to reproduce his experiences internationally. Because if not, in this asean economic community, advocates Indonesia would lose by advokat2 from outside, for example from Malaysia, Singapore and the Philippines. Seeing this, these conditions require professional advocates Indonesia to find a breakthrough and experience in order to improve quality to meet the needs of services and legal services. Because if it increases, the confidence of outsiders will increase as well. In essence advocates Indonesia should be the host in his own country.