หนังสือ-ProceedingsLawCMU 2019

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? 85 ‘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. 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. 43

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-foodstuffs- dumped-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 28 January 2002) ‘EU Ban on Chinese Food 'Unacceptable'’ (People’s Daily Online, <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

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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 47

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 48

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 49

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. 50

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. 51

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 years” 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.” 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.” 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 / belief. d. Rights to basic needs, which include access to food, basic health insurance, and 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. 54

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/wp- content/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. Gómez 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 Intra- Negara, 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. 55

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. 56

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). 57

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 3 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 59

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 victims’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 5 Actually, K5 is a project initiated by People’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 60

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 61

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 62

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 Buddha’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. 63

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. 64

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. 65

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 66

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. 67

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 free- of-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. 7 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. 68

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. 69

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.” 11 Educause. “Massive Open Online Course (MOOC)”, 2015. http://www.educause.edu/library/massive-open- online-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. 70

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 13 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. 71

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. 17 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. 72

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 22 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. 73

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. Multi- definitions education is defined as an educational process that is focused more on culture-based nurture, character, personality, and skill building needed in life.29 25 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 74

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 study- based 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 31 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. “Desain dan Implementasi Sistem Pembelajaran Jarak Jauh di Program Studi Sistem Komputer.” Jurnal Teknologi dan Sistem Komputer, Vol.3, No.4, Oktober 2015, p. 483-484. 75

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. 76

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 nation’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. 77

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. Participants’ 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 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. 148. 43 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, p. 150. 78

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-171- juta-jiwa. Accessed 23 July 2019. 79

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 46 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-terkonsentrasi- di-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-terkonsentrasi- di-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. 80

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. 81

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-network- development/. Accessed 30 August 2018. Educause. “Massive Open Online Course (MOOC)”, 2015. http://www.educause.edu/library/massive- open-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. 82

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-masih- terkonsentrasi-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-di- indonesia-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 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. 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. 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. 83

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 1 The original article was published in the 律師法學期刊 in June 2019. 2 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 [email protected] and [email protected]. 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. 84

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” 3 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. 85

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. 5ibid 148. 6ibid. 7ibid 149. 8ibid. 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. 9Nipa 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. 86

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 10Ariyanuntaka (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). 11Ariyanuntaka (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. 12Ariyanuntaka (n 4) 151. 13ibid. 14Pongsapan (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”. 15ibid. 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. 16Prasitmonthon (n 8) 1-2. 87

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, 17Ariyanuntaka (n 4) 151-152. 18ibid 152. 19Pongsapan (n 10). 20Ariyanuntaka (n 4) 153-154. 21ibid. 22ibid 155. 88

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 23See Part I: THAILAND LEGAL SYSTEM: THE CONTINENTAL STYLE OF CODIFICATION WITH SUPREME COURT DECISION AS A SECONDARY AUTHORITY. 24See Part II: THAILAND LEGAL EDUCATION. 25Sometimes called the “four-pillar law”. 89

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, “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)” (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 26Prasitmonthon (n 8) 3. 27ibid. 90

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 28The 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. 29The Office of the Higher Education Commission, ‘Vision and Mission’ <http://www.mua.go.th/vision.html> assessed 23 August 2019. 91

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 open- state 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 30Ariyanuntaka (n 4) 156-157. 31The 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_naksueksa/un_thethabar1 22018.pdf> assessed 20 February 2019. 32They were formerly a teacher college. 33Ariyanuntaka (n 4) 157. 34ibid 186. 35ibid. 92