The Chronicles of a Capitalist Lawyer

Don't you just hate the fact that many politicians seem very inconsistent in making their political choices? Supporting candidate A today, B the next day.

I still vividly remember a politician who was criticizing one of the independent candidates in July's Jakarta gubernatorial election for the candidate's lack of experience, and then changed his position to be a firm supporter of that candidate once his own candidate failed to join the election process.

We see similar things happening now when some political parties, who previously attacked the incumbent candidate, decided to support the incumbent after tragically losing the first round of the election.

Is this really a bad behavior? Should we condemn such act? I don’t think so. Far from being a reckless act, the change in political choices made by these politicians is simply rational. They would be stupid if they did otherwise. Why?

Surviving in the business of politics requires similar skills that you need in order to survive the world of commercial business. Politicians must realize, while their wants are unlimited, their resources and choices are limited, including the number of voters that will support their cause.

In the real world, you can't always get what you want. If you can't get your best choice, you should strive for the second best and so on, to the extent that you still can achieve your end goals, or at least a part of such goals.

The last US presidential election can be a good example. When I was in the United States, I once encountered a political campaign ad from Mitt Romney showing a video record of Hillary Clinton accusing Obama a liar. That was a very strong choice of word.

Obviously, the video was made before Obama defeated her in the presidential nomination race of the Democratic Party in 2008. Afterwards, Hillary became a firm supporter of Obama and now she holds the Secretary of the State position in Obama's administration.

I think that is how the political world works. Politicians use strong words in order to attract voters and to differentiate themselves from other candidates. If you say that all candidates are good, why bother having the expensive election in the first place. We can't settle everything using lotteries.

Thus, it is not a good idea to measure politicians' consistency based solely on what they say during election process or how they change their support from one cause or candidate to other cause/candidate in a short term.

Instead, it would be better for us to measure their consistency from how close they stay true with their basic objectives (assuming that the party itself has such objectives) in a long term.

This means that we need to know to what extent they will compromise their original best plan for getting the second best plan (and so on) in case they don’t have the necessary vote. And knowing the extent of their compromise is much more difficult than reading the bombastic campaign in various medias.

As an example, every media can cover a story of a politician who changes his position from A to B. But why stop there, why not ask more, like the politician's reasons for changing his standing, or how much has been compromised in order to change the vote from A to B, and so forth?

In one of my previous articles, "The Economic Problem of Choosing the Best Leader," I argue how we might create a vicious circle if we let bad politicians rule the game. One of the solutions for us to fight back is to pay more attention to the track record of those politicians.

But in order to understand their overall track record, we cannot rely on insufficient data. Sure, change of political support would be a major news and a good source for political bashing by political rivals. The problem is, everyone is doing the same and people will soon forget the case.

What we really need is a media who records the development of a political party or politician for years and then share the information to the general public. I don’t think that is difficult in this modern age and I bet the information would be more helpful to all of us compared to the usual critics that we now have.

If we really care about how politics shape our life, at least try to make people understand the issues correctly. The battle for image is absolutely necessary for political campaign and it might be impossible to ask those politicians to completely let such practice go.

Surely we can ask the independent parties, i.e. the media, to provide the needed check and balance in our political system, can't we?

Here is my latest post (in Indonesian language) at ILUNI-FHUI site: Revisiting the Function of Penal Sanctions. The post discusses the use of Law and Economics tool in analyzing the role and use of penal sanctions and how we can shape our penal sanctions to meet their primary purposes.

For a couple of weeks, we have been bombarded by news on the use — or misuse — of religion as a part of Jakarta's gubernatorial election campaign. Even the Islamic Council of Ulema's (MUI) Jakarta branch joined the fray by issuing a fatwa that people have the obligation to choose their leaders based on their religion.

This, of course, attracts a lot of comments. Some view such attempt as stupid or hypocrite, others view it as acceptable and necessary in accordance with their religious practice.

From political and economics point of view, using this strategy seems rational. Like it or not, this is a sensitive issue where opinions might be fairly distributed between the pros and cons. If you can use it to gain more voters from certain side, why not?

But, from legal point of view, should we prohibit the use of this strategy? I don't think so. Not only that it would be a very paternalistic policy, there are hundreds of other reasons that can be used by a candidate to attack other candidates. Why should we pay more attention to religion?

I don't think it would be efficient for governmental authorities to prohibit issues that can be discussed and used in a political campaign. It would be costly and we would have difficulties in justifying the reasons. Do we have a rational reason to do so or is it merely a problem of taste?

If we can say to other people that they should not vote for stupid people, why couldn't we do the same for religion?

What I think that is most important in a political campaign is candidates must speak the truth and only the truth. This is to ensure that there is no misleading information in the campaign and the democratic process can work smoothly.

This means that political candidates can say and encourage people to vote solely based on religion or ideology or ethnicity. That would be acceptable as long as they don't commit fraud or hide material information. An example: Spreading bad rumors about the other candidate who has a different religion or ideology that he is planning to destroy the voters once elected without any solid evidence.

I understand that looking at such a shallow political campaign might shock some of us. How could people blatantly accept that kind of campaign? But this is a part of democracy and freedom of speech. It is an inherent risk in a society whose people are not mature enough to focus on political programs instead of trivial things.

But don't be disappointed too much, because we can still find this joke even in a country like United States. I know that some people there — albeit minority — believe that Barack Obama is actually an Islamic agent with a mission to destroy the United States.

While the rumor is of course laughable and wrong, it shows that religious sentiments still hold certain power in a first world country. Honestly speaking, I don’t think that United States citizens would be ready to accept a Muslim as their president.

In a case like this, my recommendation would always be: fight idea with idea. If some political candidates say that religious aspect should be considered as the decisive factor in voting, other candidates must show that such idea is bad and encourage voters to do otherwise.

Later on, the market of information will eventually determine the winner of the election. And from such information we can also see whether Indonesian people still take religion issues seriously or not.

If we still want to punish these political candidates, punish those who spread false information because they might cause baseless distortion in the market which would create losses to all of us. However, how they want to shape the language of their own campaign, including choosing the ideas to discuss, should not be our concern.

The recent Olympics badminton scandal is very interesting. From a legal perspective, the answer is quite clear. The players deliberately tried to lose against each other, so they breached the Olympic rule of doing their best in each competition. Case closed.

But surely we can’t stop there. Why should we have that kind of rule in the first place? Why should we prohibit the players from choosing a rational strategy when the competition rules allow that possibility?

Is this all about sportsmanship? Like in that various martial arts stories where the fighters are always trying to fight fair and square in order to gain the sweetest victory? Or is it something else?

As a spectator, I don’t mind if the players deliberately tried to lose in order to gain victory later. The problem is, it seems that I am in the minority group. Like it or not, the idea that sport competitions should be held in accordance with the highest moral principles still lives on until today.

And the case is even stronger for the Olympic which serves as the ultimate symbol of fair competition. People want their symbol to be incorruptible. If even the players in such important event cannot meet such requirement, where else should the people look for virtue?

In this case, the rational act of the players seem to be irrational. While it is true that each player has the right incentive to win the game (including trying to lose first), they seem to forget that they are not alone in the competition.

Olympic is a big business. Sure people need a huge symbol of fairness and virtue but they would be crazy if they conduct the Olympic solely for such reason. In other words, the Olympic is conducted in that way because it is profitable for the organizer — or at least they think that it would be profitable for them.

Thus, images hold a very important position in the competition. If the organizer can’t maintain the image that the game is fair and all the players are doing their best, it will be difficult to maintain the credibility of the competition and it would affect the number of viewers.

The players — and their coaches — should put this in mind when they choose their strategy. What I see now is a foolish act, not because it was irrational, but because it was executed poorly.

Had these players realize the reality of the game and how people perceive them, they might try to lose the game elegantly. Unfortunately, trying to lose is a little bit too difficult for them.

I read in the news that people were already booing them and the referee has warned the players that if they continued to play like that, they might be disqualified. So yes, the way they executed their plan was too obvious.

So, the punishment is well deserved. Not because they fail to maintain sportsmanship, but rather because they fail to entertain the spectators and risk the overall image of the Olympic game.

Another interesting thing is the fact that some of the coaches asked the Olympic organizer to change the rule of the game to prevent such cases happening again in the future.

If the rule does not permit any possibility to pick your future competitor, the players might fully engage their true power from the beginning since nothing could be done anyway.

But once they see a slight chance to choose their future competitor, their strategy significantly changes. The question is: Is it the mistake of the organizer for making a rule that induce the players and coaches to pick such strategy?

I don’t think so. The rule of the game is clear: How players cope with the rule is their own business and if they are really smart, they should choose a strategy that will benefit them the most while minimizing the cost.

Clearly the players fail to study the costs and benefits of their action and they have to pay dearly for that. I can only hope that this could serve a good lesson for them, especially the Indonesian contingent. Better luck next time.

This is an era where people can spread information anonymously and are able to gain trust from a lot of other people. The million dollar question is: Is this a good thing or a bad thing?

I know that some people do not like the fact that these anonymous informants can get many viewers in such an easy way and fear that these viewers will be fooled by distribution of false information. This, however, is an exaggeration.

Like it or not, having anonymous informants is a normal thing in the modern market of information, especially with our telecommunication technological advances.

And in such market, there will be high quality information and low quality information. Trying to have a paternalistic central body to analyze and differentiate each type of information would be very costly. So it would be better to let the people themselves decide whether the information is worth to know or not.

Furthermore, it would also be too late to say that anonymous informants are unreliable and should be censored at this stage. Similar to anything that falls under the category of free speech, censorship would always be costly and difficult to do (unless you are the government of China).

Rather than spending our times thinking how to prevent these anonymous informants from getting more and more viewers, we should do what every rational man would do: ignore them.

Why? It’s simple. If the unreliable information hurts the interest of certain people or entity, they would be the ones who naturally have the biggest incentive to fight back and spend their resources for such fight. We’ve seen these cases happen in the real world.

There would be no need for bystanders like us to join the fight and spend our precious time and resources to deal with informants that we think are unreliable in the first place.

Or might it be that you are enraged by the fact that there are so many foolish people who blatantly believe or follow what these anonymous informants say? And as a result, you want to declare a war on the informants?

Better think about it again. First of all, you don’t really know whether these so called “foolish” people really think that they are getting the truth. They might just see it as a form of entertainment. Everyone loves gossips and conspiracy theories after all.

Second, unless the informants are trying to persuade their readers to conduct a bloody revolution, why we should care about the mumbo jumbo that other people believe? As I said, those who are being harmed by the false information will move by their own, quicker than we can ever thought.

Another thing that makes me believe that these anonymous “informants” (especially those from social media) do not give us reliable information is because no one is truly anonymous in this modern age.

Anonymity is usually used when you want to talk about some sensitive issues and you are concerned about your safety, although in certain case it is used simply because you want to talk anything without any responsibility. Thus, such anonymity would be used carefully.

But I don’t see this carefulness coming from the informants that we often see and hear in the social media. They just share information as they wish through a media that can be easily accessed by other people to know their whereabouts.

If the information that they distribute is very sensitive and true, and all of such information is related to powerful people, these informants must already hit the coffin long time ago. But apparently, that’s not the case. Not even any serious report to the police for defamation. In other words, the information should be unreliable and they exist just for fun.

Word of advice: don’t think too much about these informants. As for the people who think that these informants bring the truth, well, there is still a good side of it.

If you are an employer, you would now have a good arsenal to test new employee. Ask them whether they believe what these informants say and let their answer help you to decide whether they are qualified for the job or not.

Look, you just get a cheap IQ test out of it. So, who says that having these informants are bad for the society?

We all know the familiar phrase “may the best candidate win” in an election process. Obviously, we really hope that we can get the best leader through such process. Yet in reality, we often fall into a situation where the entire candidates suck and we are forced to vote for the best among the worst, which is still bad.

Have you ever wondered why most of the time, getting the best from the bests as our leader is very difficult? Is it actually possible for us to use a meritocratic system where leaders are chosen solely based on their capabilities? The answer might be disappointing.

The main problem? We tend to forget that in the modern world, leadership is neither simply a right nor a privilege; it is a job with certain responsibilities. There are costs and benefits involved. Thus, the law of supply and demand will govern the process.

Those who want to be leaders do not necessarily have the needed capabilities. Most of them, if not all, are people who believe that the overall benefits of being a leader are higher than the total costs.

Of course, the hopeful leaders might have been wrong in projecting their victory. We’ve seen cases where unelected officials went berserk due to the stress caused by their failure. But that does not matter.

The most important thing is that when they chose the path of leadership in the first place, they were convinced that it would be good for them. Whether it would also be good for other people is a bonus. It would only matter when there is a strong connection between the leader’s performance and his future electability or the security of his current position.

This is the primary cause for our difficulties in finding the best leaders. We can’t simply assume that these leaders would be purely motivated by altruism or that they will serve the people just for the sake of being a good leader.

Even worse, the problem would be amplified when the requirements of getting as many votes as possible are significantly different with the requirements for becoming a leader itself. The differences may vary around the world but they do exist.

That would mean that each candidate will need two different set of skills: the skills to be elected and the skills to lead. In practice, these two set of skills are different. Thus, we see people who become politicians and those who become technocrats.

Not everyone, unfortunately, is blessed with both skills. There are many situations which may affect the possibility of a candidate to become a leader and give one set of skills a better advantage over the other.

Track record of leadership is one example. No one knows exactly how a person can be an effective leader without first knowing his track record of past performances. However, in a situation where the track record is unclear or hard to know, the skills for attracting voters would be more important than the skills to lead.

In countries where information about candidates is not widely distributed - unless you have a lot of money - the costs for candidates with good leadership skills but less vote gaining skills would be too high.

In case these people - who are actually fit to be the best leaders- believe that joining the election race does not worth their time because they don’t have enough skills to be elected, we are doomed.

With less good people, the market of leaders will be oversupplied with bad candidates who know how to attract votes. While at first people might vote for them, sooner or later people will know their leaders true quality.

The problem is, if these bad leaders create a cartel to maintain their position - since they are in power anyway - the chances of having new good candidates would decrease. This will trigger more apathy from rational voters to participate in the election and we will end up in a vicious circle until God knows when.

Of course, I do not want to write an entirely gloomy article. A single tiebreaker can actually end the above vicious circle. The case of the latest regional election in Jakarta might be a great example.

I believe that the existence of independent candidates who have some vote attracting skills - though have no chances of winning - opened the possibilities for Jakarta politicians to break up their cartel and pursue a chance to win the election for themselves, which give opportunities to the citizens to choose other candidates.

At this stage, I do not know whether the election result would be beneficial for the citizens, but I am happy to see that there is a practical solution to break the vicious circle without having to conduct a revolution.

I always want to do a survey on how Indonesian people perceive the implementation of Shari’a as a part of positive laws. Many surveys have been done on this issue. The problem is, either the questions are too general or only deal with the “famous” provisions of Islamic law.

By general, I mean that the question only asks whether a person accepts the implementation of Shari’a without knowing whether he would agree entirely with any kind of implementation or only to a certain degree.

By famous, I mean that the question only deals with classical provisions that are well known by many people such as hand cutting for thievery, stoning for adultery, etc.

I believe that this kind of survey cannot be used to know precisely whether the respondent fully understand his answer, that he gives his responses based on a good understanding of Shari’a and not just because he doesn’t want to be considered as a religious blasphemer.

In this article, I will provide certain guidelines of questions that can be considered when we are doing the above survey. First, do not start by asking the general question. Rather the survey must start with questions on specific provisions of Islamic law without any reference that such provision of law is a part of Islamic law.

The first set of questions should deal with slavery issues. Here we test whether the respondent would agree with the legality of slavery and whether they perceive slavery as a bad thing. Classical Islamic law permits slavery for more than a thousand of years. If people disagree with such notion, their belief on the supremacy of Islamic law should be questionable.

The second set of questions deal with economic issues. In this part we ask the respondents on whether they would agree to lend money to other people without any interest at all time, even for business purposes. And then we ask them whether they perceive bank interest as something bad, or just business as usual.

Classical Islamic laws stipulate that bank interest should be prohibited because it resembles "riba," that the sin of charging "riba" is equal to killing a person or having incest relationship with your own mother. Interestingly, for such type of sin, no criminal punishment is available (making me to believe that in terms of economic matters, Islamic law is pro capitalism).

Third, we deal with family law issues. The questions should be, among others, whether they agree that divorce rights should stay exclusively with the husband and that courts should not interfere at all (so husbands can divorce their wives as they wish) and whether husbands can do polygamy without requiring any approval from his first wife.

Here I primarily want to see how women respondents will react. The above provisions are parts of classical Islamic law which is not even implemented under Indonesian Islamic law. Yet, if we are staying with the tradition we should go with the old ones, unless you want to say that Islamic law is not eternal and its provisions can be changed in accordance with the relevant situation.

Fourth, we go with the criminal law issues, we can ask the usual famous questions with some twists. We should ask whether respondents would agree that any murderer can be released from punishment as long as he pay a decent amount of compensation to the victim’s family.

If they say yes, we can ask them whether they would agree that a thief can also be forgiven if he pay additional compensation to his victims along with returning the stolen goods. Such concept does not exist in classical Islamic law.

What I want to test here is whether people would agree that Islamic criminal law is good for the rich but not for the poor since the poor has no money to pay their way out from punishment, whether they will perceive this as a fair law or not.

Finally, we ask them about procedural law issues. Would they agree that a woman’s value of testimony will only be considered half of a man? Would they agree that non Muslims cannot testify in a case and if there are no Muslim witnesses for an important case, what would they do?

Would they agree that any witnesses must satisfy the strict requirement of Islamic law, meaning that such witness is close to a perfect human being, e.g. consistently maintain 5 times prayer a day and any other type of worshiping activities, never lie, maintain body cleanliness all the time, nice to other people, etc.

All these questions test the respondents believe on whether the above requirements (which no longer work in actual practice due to their inefficiencies) should be accepted as a part of positive law.

The final goal of these questions is to test the respondents consistency, especially when we close the survey with this question: would you agree that Indonesia should implement Islamic law in entirety because it is God’s law?

If they still say yes in the end, we should see whether they accept everything from the beginning or whether they agree to certain parts only. If they only accept certain parts, we can ask them whether they truly believe that Islamic law is perfect and thus should be implemented without any further questions.

Once we go with these kind of questions, I doubt that the number of people who vote for complete Shari’a implementation would be many. But this is still a prediction.

So, is there anyone who want to try conducting this survey and find out the real answer?