THE CHRONICLES OF A CAPITALIST LAWYER

RANDOM THOUGHTS OF A CAPITALIST LAWYER ON LAW, ECONOMICS, AND EVERYTHING ELSE

Showing posts with label Public Choice. Show all posts
Showing posts with label Public Choice. Show all posts
  • Al-Maidah: 51 dan Politik Islam yang Tak Kunjung Lepas Landas


    Minggu lalu saya diminta untuk memberikan komentar atas artikel berjudul "Politik Islam di Indonesia: Ideologi, Transformasi, dan Prospek dalam Proses Politik Terkini" yang ditulis oleh Muhammad Zulifan. Karena menurut saya artikelnya juga berhubungan dengan artikel Zulifan lainnya tentang Tafsir atas Al-Maidah Ayat 51, maka saya akan menggabungkan komentar saya atas kedua artikel tersebut dalam tulisan kali ini.
  • Perpu Bermasalah Tak Layak Dibela!


    Ketika pertama kali membahas mengenai Peraturan Pemerintah Pengganti Undang-Undang ("Perpu") terkait Pemilihan Kepala Daerah ("Pilkada") di sini dan di sini, saya berpikir hanya Prof. Mahfud MD yang berargumen bahwa akan terjadi kekosongan hukum apabila Perpu tersebut ditolak oleh DPR. Saya sudah membahas panjang lebar dalam kedua artikel tersebut mengapa kekosongan hukum tidak mungkin terjadi (karena penolakan wajib dinyatakan dalam bentuk Undang-Undang ("UU") yang akan menyatakan akibat hukum dari penolakan Perpu tersebut) dan bahwa ada potensi permasalahan hukum yang terlewat yaitu terkait kewenangan Presiden dan DPR dalam membahas UU di atas.
  • Politik dan Pencitraan yang Optimum


    Beberapa hari yang lalu, saya membaca sebuah tulisan singkat di Facebook yang mengkritik kicauan Susilo Bambang Yudhoyono (SBY) di Twitter soal pencitraan dalam berpolitik. Saya tak setuju kalau kicauan SBY merupakan bentuk kesinisan dalam berpolitik sebagaimana diargumentasikan si penulis di atas. Politik pada prinsipnya tak akan pernah lepas dari pencitraan, sama seperti penjualan suatu produk juga tak akan pernah lepas dari iklan, baik iklan melalui media massa maupun mulut ke mulut.

    Untuk dapat memahami isu pencitraan, kita harus memahami terlebih dahulu bahwa kemampuan untuk memimpin dengan kemampuan untuk dipilih menjadi pemimpin (khususnya melalui proses politik) adalah 2 hal yang berbeda. Bagus sekali apabila pemimpin kita memiliki keduanya, tetapi dalam prakteknya, hal tersebut tidak selalu bisa didapatkan. Berpikir bahwa tidak ada politisi yang melakukan pencitraan tentunya sangat naif. Bahkan kalau sekalipun si politisi benar-benar berkomitmen untuk memajukan masyarakat, dia tetap butuh pencitraan. Tanpa pencitraan, bagaimana orang bisa tahu tentang komitmen si politisi?

    Hal ini merupakan dampak dari demokrasi. Ketika tampuk kepemimpinan diserahkan pada mekanisme voting secara populer, apalagi melibatkan orang dalam jumlah yang sangat banyak, kemampuan untuk mencari dukungan politik jauh lebih diperlukan dari kemampuan aktual untuk memimpin, kecuali mayoritas pemilih benar-benar peduli tentang kemampuan memimpin tersebut (yang akan bergantung pada beragam faktor, seperti tingkat pendidikan dan pendapatan pemilih serta kemungkinan bias dari pemilih terhadap jenis politisi tertentu)

    Tidak ada pemimpin karbitan. Politikus pada umumnya sudah membangun modal politiknya sejak lama. Dan ini tidak mengherankan. Bayangkan kalau anda ingin menjadi Presiden di Indonesia dimana pemilihnya lebih dari 130 juta manusia. Anda pikir terkenal sehari, sebulan atau bahkan setahun saja sudah cukup untuk bisa memenangkan kompetisi tersebut? Presiden Jokowi sudah membangun modal politiknya mulai dari Solo bertahun-tahun yang lalu. Prabowo bahkan sudah mempersiapkan dirinya dari masa muda, dan itu pun masih gagal.

    Jujur saja, ketika saya dulu memilih Jokowi sebagai Presiden, pencitraan dirinya memegang peranan penting bagi saya. Saya suka dengan pencitraan Jokowi sebagai pemimpin yang mencari konsensus dan jalan alternatif dalam menyusun kebijakan. Sebaliknya, saya tidak suka dengan pencitraan ala Prabowo yang mencitrakan dirinya sebagai pemimpin tegas yang bisa menyelesaikan semua masalah di Indonesia hanya dengan menjadi tegas. Dan saya membahas isu tersebut panjang lebar di artikel ini. Tetapi walaupun saya menganggap pencitraan Prabowo sebagai hal yang buruk, faktanya 60 juta lebih rakyat Indonesia memilih dia sebagai calon Presiden. Sedikit banyak, pencitraan Prabowo cukup efektif dan diminati oleh masyarakat, hanya saja pencitraan Jokowi masih lebih diminati oleh mayoritas masyarakat.  

    Selain sebagai sarana untuk membuat diri politisi dikenal dalam proses menjadi pemimpin (termasuk ketika hendak naik tingkatan), pencitraan juga tetap diperlukan setelah si politisi berhasil menjadi pemimpin. Perlu diingat bahwa memimpin suatu negara merupakan salah satu pekerjaan yang paling menantang di dunia. Menjalankan seluruh program yang pernah dijanjikan oleh politisi dalam 1 periode kemimpinan merupakan hal yang hampir mustahil, kalau bukan mustahil sama sekali. Faktor yang perlu dipuaskan banyak (kesejahteraan masyarakat yang mengandung banyak unsur, baik finansial, fisik maupun mental) dan kadar kesuksesannya bergantung pada banyak faktor yang berada di luar kontrol dirinya.

    Dalam kondisi di atas, pencitraan memegang peranan penting sebagai penyeimbang dalam menjaga tingkat kepercayaan masyarakat kepada pemimpinnya ketika suatu program yang sudah dijanjikan ternyata gagal untuk dilaksanakan, khususnya pencitraan sebagai pemimpin yang baik, yang sudah menerapkan prinsip tata kelola yang baik, yang peduli pada masyarakat, dan sebagainya. Tentu saja ketika kegagalannya semakin bertambah, efektivitas pencitraan juga akan semakin berkurang. Masyarakat tidak bisa makan citra semata apalagi ketika kebutuhan atau kepentingan dirinya terganggu.  

    Sampai di sini, kita paham bahwa pencitraan adalah bagian inheren dari politik. Isu utamanya adalah: bagaimana menemukan level pencitraan yang optimum? Ada banyak strategi yang bisa digunakan oleh politisi. Ada yang ingin menyenangkan semua lapisan masyarakat, ada yang ingin menyenangkan sebagian besar pemilihnya, ada juga yang ingin menggaet dukungan dari massa yang dulu tak mau memilihnya. Ada taktik pencitraan yang menonjolkan ketakberdayaan pemimpin mengambil keputusan, ada juga yang akan menonjolkan bahwa kegagalan program terjadi karena hal yang berada di luar kontrol pemimpin. Politisi ulung dan berpengalaman seharusnya tahu level pencitraan yang tepat sesuai dengan kebutuhannya, tetapi politisi juga manusia, dan dia bisa melakukan kesalahan. Oleh karenanya, kritik senantiasa diperlukan.

    Kritik SBY menurut saya masuk akal, bahkan walaupun dia sendiri sebenarnya juga berlebihan dalam melakukan pencitraan semasa dia menjadi Presiden. Justru kesalahan-kesalahan taktik pencitraan SBY dapat menjadi bahan pelajaran yang berharga bagi Presiden Jokowi. Pencitraan yang berlebihan justru akan kontraproduktif, khususnya apabila nantinya tidak dibarengi dengan kinerja yang memuaskan. Ibarat kata, perusahaan dengan iklan terbaik di dunia pun tetap saja akan merugi
    karena pembelinya berkurang kalau produk akhirnya ternyata tidak sesuai dengan yang dijanjikan.

    Ambil contoh kebijakan makan cemilan tradisional sebagaimana dibahas di sini. Menteri Pendayagunaan Aparatur Negara kita berargumen bahwa kebijakan ini akan merangsang petani lokal untuk memproduksi lebih banyak hasil cocok tanam lokal. Tidak lupa ditambahkan iming-iming bahwa makanan ini lebih sehat dan lebih nasionalis. Tipe kebijakan seperti ini jelas masuk dalam level pencitraan belaka.

    Pertama, kecil sekali kemungkinannya perubahan dalam konsumsi makanan kecil pegawai negeri akan mempengaruhi permintaan terhadap produk lokal petani. Kedua, saya tidak yakin kebijakan ini akan berlaku efektif karena penegakannya tidak mudah. Siapa yang akan menghabiskan waktunya untuk memeriksa semua makanan kecil yang disediakan di rapat-rapat pemerintah? Mungkin kalau petingginya sedang hadir, kalau tidak? Ketiga, isu usang nasionalisme. Nasionalisme selalu terkait erat dengan pencitraan karena memang enak untuk didengar, terlepas apakah ada manfaat riil atau tidak bagi masyarakat.

    Kalau pemerintah serius bermaksud untuk memberikan insentif kepada petani untuk bercocok tanam, mereka tidak akan menggunakan kebijakan cemilan lokal yang sebenarnya mempermainkan para petani mengingat manfaat yang petani terima kecil atau mungkin tidak ada karena tidak berpengaruh signifikan pada harga produk pertanian lokal. Pencitraan ini hanya mungkin menguntungkan aparat pemerintah karena mereka bisa mencitrakan dirinya sebagai pribadi yang cinta produk lokal (dengan asumsi sebagian besar masyarakat Indonesia menyukai pencitraan tersebut).

    Kebijakan lainnya yang menurut saya patut dipertanyakan adalah kebijakan Presiden menggunakan pesawat kelas ekonomi yang dijalankan tanpa memikirkan isu keamanan, misalnya dalam berita ini dan ini. Bayangkan jadwal keberangkatan sampai tempat duduk Presiden diberitahukan kepada khalayak ramai? Ini jelas pelanggaran terhadap protokoler keamanan terhadap orang nomor satu di negeri kita. Mencitrakan diri sebagai Presiden hemat adalah sah-sah saja, tetapi informasi yang disampaikan juga seharusnya dibatasi.   

    Menggunakan pesawat kepresidenan mungkin akan memakan biaya yang lebih mahal dibandingkan dengan pesawat kelas ekonomi, tetapi komponen biaya dalam analisis untung rugi kita kali ini tidak terbatas pada biaya pesawat, biaya keamanan Presiden kita jauh lebih penting! Hal itu yang seharusnya dipertimbangkan sebelum kebijakan ini diambil. Kalau keselamatan Presiden terancam, ujung-ujungnya kebijakan ini akan menjadi pencitraan dengan biaya yang sangat mahal.

    Terakhir, kebijakan yang juga sempat saya kritisi adalah usulan Wakil Presiden Jusuf Kalla mengenai pengurangan jam tenaga kerja karyawan wanita (Silakan cek artikel ini). Saya cukup yakin bahwa ide yang sebenarnya berpotensi merugikan karyawan wanita ini lagi-lagi merupakan bagian dari pencitraan publik dengan memperhatikan kebudayaan mayoritas masyarakat di Indonesia yang masih menganggap bahwa ada peranan mutlak dan khusus bagi wanita. 

    Kembali ke kritik SBY, Presiden Jokowi sebenarnya belum perlu melakukan pencitraan yang masif dan beraneka ragam, untuk apa? Pemerintahannya belum sampai 3 bulan dan sejauh ini belum ada indikasi penurunan tingkat kepercayaan dari masyarakat. Isu kenaikan harga bahan bakar minyak saja bahkan hanya memakan waktu keributan seminggu-dua minggu. Menurut saya itu luar biasa (walaupun penyebabnya tidak bisa saya prediksikan secara pasti), dan momentum kepercayaan ini bisa digunakan untuk hal yang lebih produktif.

    Saat ini strategi pencitraan awal yang dipilih oleh Presiden adalah pencitraan kerja, kerja dan kerja. Kenapa tidak fokus di situ saja? Pendukung Jokowi sudah paham betul pencitraan Jokowi sebagai pemimpin yang merakyat dan hemat. Untuk apa meyakinkan pendukungnya lagi ketika situasi dukungan masih kuat? Yakinkan mereka yang sebelumnya tidak sudi memilih Jokowi, yang tak percaya Jokowi adalah pemimpin yang tegas, yang percaya bahwa Jokowi adalah pemimpin boneka dan sebagainya. Pekerjaan rumah Presiden masih banyak, jangan buang-buang waktu untuk melakukan pencitraan yang tidak perlu. Pilihlah pencitraan yang optimum!           
  • The Correct Way of Measuring Political Consistency


    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?  

  • Using Religion for Political Campaign, Why Not?


    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 Economic Problem of Choosing The Best Leader


    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. 
  • Is Legally Prohibiting People From Buying Subsidized Fuel a Good Idea?


    Although the House of Representatives on Friday rejected a plan to raise the price of premium subsidized fuel, the government can still raise the price in the near future. This may delay another debate on whether we should cut the fuel subsidy. Unfortunately, the current global price has continuously risen, and the price of non-subsidized fuel has significantly increased.

    Considering the price discrepancy between the two types of fuel, and assuming that the difference in their quality cannot be easily distinguished, it does not take an economist to conclude that people will likely (if not certainly) purchase the cheaper option. Surely, no rational person would believe that asking people to be ethical by not purchasing the subsidized fuel would work without any legal sanctions.

    The question then is this: Would sanctioning those who buy subsidized fuel and can afford the non-subsidized option be a good idea? I believe it would not be wise at all.

    First, the consumers of subsidized fuel come primarily from the middle-class. These are people who will have difficulty adjusting their lifestyle with the rising fuel price. Those in the upper class don’t have any problem paying for fuel, and might not consume the subsidized product in the first place.

    But penalizing people for buying subsidized fuel might be dangerous — there would be too many targets to cite, and the costs of legal enforcement would be excessive. If people are cheating the rule and buying subsidized fuel, how many legal enforcers should be created, deployed and paid to combat them?

    Furthermore, a penalization system might increase social unrest, especially if the government ends up punishing people for something they feel they naturally need. That could potentially be another huge cost to society.

    Also, if we impose penalties on those who buy subsidized fuel, why bother maintaining the low price? Imagine the inefficiency of such a system. We spend money maintaining the subsidy, and then we spend more money enforcing the law in order to ensure that only needy people buy cheap fuel. It doesn’t make any sense at all. These are double expenses with unknown benefits.

    Another way to induce people to buy non-subsidized fuel is to require insurance companies to cancel or reduce protection for cars that use subsidized fuel. But the problem with this solution is that we need to make sure insurance companies will cooperate, therefore spending additional money to supervise the insurance companies — again spending more money trying to save money.

    In addition, if the price discrepancies keep increasing, the above measure will be less effective since people will likely treat the costs of losing insurance as a future probabilistic matter, while the high fuel price is the current problem they face. In short, they will have more incentives to choose facing future risks rather than facing the problem now.

    Let us make this difficult situation as easy as possible. The main problem with having different prices of fuel at the same location is that it is almost impossible for us to ensure that only the right targets will benefit from the subsidy. You can not fight human nature to pay as little as possible for goods. And I’m quite certain that politicians, who by their very nature must pander public opinion, would never agree to penalize consumers (who are also voters) from buying subsidized fuel. Increasing the price is one thing, but criminalizing people would be an unacceptable threat to future votes.

    This problem would never occur if the government did not create an excessive market distortion in fuel supply. After all, it would be easier for the people to adjust to the change when those changes are gradual. Shock therapy rarely produces a good result, and often comes with huge sacrifices.

    I think this is the right time to be realistic. Unless the government can find a quick way to make a lot of money, maintaining the subsidy is a bad idea ­— but criminalizing use would be a recipe for disaster.
  • The Baptists, The Bootleggers, and the Fuel Subsidy


    There is a very interesting case study in Public Choice literature. Once in the United States there was a law called Sunday Blue Laws which basically prohibited the sale of alcohol in Sunday. One of the supporting groups for this law, we call them as Baptists, was a group consisting of people who wanted to prohibit such sale of alcohol based on moral and religious values. The other group, we call them as Bootleggers, was the seller of illegal alcohols. They also supported such law but not based on altruistic or moral values, rather it was because such restriction increased their profits. The stricter the restriction is, the less the supply for the alcohol, the bigger the price that they can charge for their illegal products.

    It goes without saying that these two groups are ideological opponents, but with respect to political matters, they were in the same side and their cooperation as interest groups allow them to provide the necessary voting power in the legislative to support the promulgation of the Sunday Blue Laws, effectively prohibited the sale of alcohol even though both groups have completely different reasons to support such laws. Public Choice theorists also use the same analytical structure when they review a very famous case in the United States, i.e. the Lochner case which dealt with whether New York may legislate the maximum working hours for workers in bakery shops.

    New York argued that the law was passed to protect the health of the workers since during the beginning of the 20th century, the working condition of many bakery shops was so poor and many workers work for a very long hour in order to compete with each other. Some politicians support this law on the basis that they need to protect the interest of their citizens, giving protections to relatively weak workers from the capitalists. But the researchers also found out that the other supporters of this New York law are groups of major bakeries that already comply with such law and want to cut the competition by imposing a law that will destroy the business of many small bakeries that depend on immigrant workers.

    Again, we can see how the cooperation between Baptists and Bootleggers worked very well in this case. The US Supreme Court finally deemed the law unconstitutional although after the passing of the New Deal by Franklin Roosevelt, more paternalistic laws were issued and the Supreme Court was pressed by the President to support those laws. But that will be another topic of discussion. For now, let us focus with the case of fuel subsidy in Indonesia.

    We can quickly see two groups rejecting the reduction of fuel subsidy. The first group argue that reducing fuel subsidy will harm a lot of poor people. The fact that most of the time the subsidy is enjoyed by those who actually do not deserve it does not matter since once the subsidy is reduced, it will affect the overall price of goods in Indonesia and the poor people will suffer. There is a grain of truth here. You do not need to be a genius economist to understand that when you increase the fuel price, since it affects the price components of many other products, producers will most likely also increase their prices as a response. Consumers will be the victim here.

    The second group reflects the people who enjoy the existence of fuel subsidy, those who buy the cheap fuel and those who illegally export the cheap fuel to other countries for considerable profits. For those who buy the cheap fuel, it is simply a rational choice, at least for the short term. Whether there will be huge inflation and whether it damages the environment are things that will happen in the future and discounting the probability of having such catastrophe in the near future, they might conclude that in the long run, all of us (this generation) would already be dead when the Earth is being struck by such catastrophe. So, why the heck should we care anyway? It's the problem of future generations, not us.

    Combined these two groups, and you will find that they consist of the majority of Indonesian people. They might have different agendas, but they have the same goal, preventing the fuel price from going up. As such, I do not see why I should be surprised with the recent political maneuvers in our legislative board. Politicians, considering their rational incentives for maximizing their own interests, would always consider the present condition in making their decision. And the future for them would always be about the next election, meaning that they are very short sighted. Whatever beyond the election period is another issue to be solved when they reach another election.

    Of course in the context of Indonesia, it also means that the idea of reducing the fuel subsidy will never be a popular one. You can't argue about the needs to conserve the energy or to pursue alternative energy sources in a country where most of the people have bleak futures. They don't care about such issues. If they are pessimistic with their futures, how could they appreciate the fact that our environment is in danger? For them, whether the environment will be destroyed or not in the future will not alter the fact that their life sucks now and most probably also sucks in the future.

    The question is, how could we avoid this vicious cycle? One thing that might happen is to wait until the fuel price has reached a point of no return where it would be impossible for the government to maintain the subsidy. I note that this might be the political compromise made a couple of days ago. At least when you need to take an unpopular policy, you take it after you are in a desperate condition. Might actually work, but I can't predict whether the end result would be beneficial for all of us, since it might also be too late.

    You see, the problem of this kind of policy is that in the end it is made to support certain groups at the expense of other groups. Right now, the Government supports both of the Baptists and Bootleggers groups at the expense of tax payers money, though I will argue that the Bootleggers are the ones who enjoy most of the policy. From Game Theory perspective, it is also a prisoner's dilemma game. I personally for sure will buy the cheap fuel. It is paid by my tax without my consent, and I will enjoy it to the fullest. I bet that many other people will also think the same. It will turn out into the tragedy of the commons and everybody will eventually suffer.

    The Baptists group may produce a nice argument on the need to support the poor. It is a valid argument, but it fails to see the overall human incentives. Rational choices of many people may produce a bad result, that is the essence of the tragedy of the common. Everyone will be better off had they conserve the energy, but in a situation where every people can benefit themselves at other people expenses and there is a lack of supervision, the rational choice will be to spend the resources as soon as possible before other people take the resources for themselves. Why bother conserve the energy if we can't be sure on whether everybody will do the same? See the irony?

    Is this a premonition for a bleak future for us? Who knows? We can hope that suddenly a miracle will occur, maybe someone will be able to produce energy from water and humanity will eventually survive. But until that day comes, you better cross your fingers and hope for the bests. After all, we are all together in this situation.

    PS: I only provide a positive analysis of our current condition. There are many other people who have provided excellent normative analysis on the policies that should be taken on fuel subsidy and I don't think that my thoughts on the normative aspects will give an additional value so I decide not to dwell on it.
  • Does Legislative Intent Exist?


    Two of the interesting notions in the world of legal interpretation are the existence of legislative intent (maksud pembuat undang-undang) and that such intent is eligible to be used in interpreting ambiguous laws. I too must admit that I once agreed with those notions during my undergraduate days, but later on I changed my position and my encounter with Public Choice theory strengthened my conviction. First of all, legislators (in our case, DPR) are not a single entity. As famously termed by Kenneth Shepsle, a Professor of Government from Harvard University, "congress is a they, not an it". There is a deep insight in that statement with some serious implications.

    Some legal scholars believe that legislators have certain intentions when they promulgate a law. Thus, whenever there are ambiguities in the law, judges should try to interpret the text of the law in accordance with the governing legislative intention. But of course, this is far from the truth. Try reading a law and see the elucidation section. Some have explanations, but most of the time, we only see the words: cukup jelas (clear enough). And I can confirm with huge confidence that the term "clear enough" is simply overrated, meaning that what those legislators thought as clear is not clear at all. After all, no language can perfectly express the intention of a single person, what do you expect then from our language in expressing the intentions of 560 people?

    The fact that our DPR consists of hundreds of members shows that it is impossible to determine their intention as a whole. There would never be a single unified intention from these people. Each faction has its own interest, and each member of such faction might also have different interests and preferences. The final product, i.e. the law along with its elucidation, does not necessarily reflect the intention of the overall legislators, it is simply the result of various political compromises with all of its flaws and errors. There might be the winning coalition and losing coalition and the law may only reflect the view of the winning coalition.  Not to mention that there are also possibilities of interest groups' involvements in law making process which might jeopardize the interest of many for the needs of the few.

    So what is the biggest implication of the above insight? We must understand that since the legislators do not have an unified intention, trying to interpret the laws in accordance with their intention might not really work in practice. A good example is the Constitutional Court decision in the judicial review of Broadcasting Law (Law No. 32/2002), specifically on the authority of the Indonesian Broadcasting Commission (KPI) to issue broadcasting licenses for private broadcasting companies. In such decision the Constitutional Court declared that what the legislators intend to say does not mean anything if it is not expressed in the law itself.

    As a background, the law says that the authority to issue broadcasting license resides with the Ministry of Communication and Informatics (KOMINFO). However, KPI argues that the legislators actually intend to give such authority jointly to KOMINFO and KPI in its capacity as the representative of the people. After all, KPI has the authority to conduct the preliminary selection process and provide recommendation to KOMINFO. Why then the licensing authority should solely fall into KOMINFO? But as stated by the Constitutional Court, it doesn't matter what the legislators thought about what KPI authorities should be. If they don't put it in the law, they can't say it as a law.

    I tend to agree with the Constitutional Court, but I would not stop only on the texts of the law. Even when we refuse to acknowledge the existence of legislative intent, we still need to be practical. In my view, interpretation of the law must consider three main factors: (i) the texts of the law, (ii) the context of such texts in view of the overall provisions of the relevant law, and (iii), the possible consequences of using such context in practice. The law is a product of men and thus cannot and should never be separated from a reality check. Furthermore, with respect to my third point, as I've always stated in my posts, the law should be directed to reach the most efficient result, meaning satisfying the welfare of the society as much as possible with the lowest costs possible.

    Using this method of interpretation, the text of the law would still be the primary source of the law, but we will also be less formalistic in interpreting the texts. Instead, judges decision will be guided by how their judgment can achieve the best results for the society welfare by calculating the costs and benefits of the immediate and long term effect of their judgment. No wonder Oliver Wendell Holmes, in his most famous law review article written in 1897, The Path of the Law, argued as follow: "For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics."

    Of course, it is not easy to use this method of interpretation in practice. We tend to narrow this method to simply judging based on the society's sense of justice which is not helpful at all since we really don't have a standard of what could be exactly considered as the society's sense of justice. No wonder judges choose to use legislative intent as a solution when plain meaning method does not work to solve the case.

    Right now, I am taking a class on Judicial Decision Making, focusing on corporate law issues, where I act as a justice of the supreme court in the State of Delaware, United States of America. I believe this would be a very good opportunity for myself to test how I will decide the cases using my own legal interpretation method (since we start with a clean doctrinal state) and whether I can consistently apply what I've said in this post. Once I've completed the whole course (it will take around 2 months period), I will update again my view on this issue in a separate posts.
  • School Discrimination, Availability Heuristic, and Positive Exclusionary Vibe


    Yesterday, another interesting case occurred in Indonesia. Apparently, a private school required a child with HIV positive father, who has been previously admitted to such school, to undergo a HIV test. If the result is negative, the child is permitted to enroll, but if she is positive with HIV, then her admission will be cancelled by the school. In short, the parent refused to give the result and the school later on informed them that because the other parents in the school refuse the presence of the child having a potential of HIV positive, the admission for the school is cancelled. The main question from law and economics perspective, can this action be considered as a discrimination? Can the school, as a private party, refuses the admission of a child because of the risks brought by that child to other children, whatever the probability is? What would be the solution?

    I look first at Law No. 23/2002 on Protection of Children and I find in Article 13 of that Law that a child, while under the care of parents,guardians, or any other parties responsible for the custody,is entitled to protection from any form of discrimination. If we consider the above action as a discrimination, judging from the text of the Law, I doubt that the school can be blamed, since the text seems to be intended to protect children from discrimination by their own parents or guardians. A school might be considered as a guardian of a child during the school time, but if the child never enrolled in the first place, there would be no legal obligation to protect the child from any discrimination. And based on that notion, I can see why the school chose to instead cancel the admission rather than accept the kid, if the kid is already in the school, the school will be obliged to protect her from any kind of discrimination.

    So what would be the answer to this problem? Let's take a look at the reasoning used by the school to cancel the admission, i.e., they say that other parents disagree having a child with a potential HIV in the school. If this is true and these parents are the majority faction in the school, I can see why the school ended up with their decision. I bet they know that in the modern interconnected world like we are having now, this case will cause public controversies, there will be uproar, and to certain extent their name will be tainted. But, as long as their legal risks are low and most parents whose child go to their school support such policy, their benefits are still higher and there will be less incentives to change such policy.

    Should we change the law then? Should we impose liability to the school for cancelling the admission? Should we force them to accept a child whatever his/her sickness is and whatever the probability of that sickness in infecting other kids is? I admit, these are very hard questions, and before we can answer those questions, we should analyze first the economics of preventing risk of infectious diseases. The State of Illinois can be a good example where it requires all international students to have immunization from certain diseases. Failure to do so within a certain time frame will cause the students to be rejected from registering for the remaining quarters in an academic year. Can we call this as a discrimination to immigrants or visitors? Might be, but voters love a state that seems to protect their citizens interest and the state can always say that it has the obligation to protect its citizens from any unwanted casualties.

    This is precisely the problem faced by the above school. On one hand, the risks of accepting a kid with HIV positive might be very small to the other kids enrolled in such school, after all, HIV is not a disease that can be easily transmitted to other person. But on the other hand, even though the risks are small, the majority have different perception, which, I suspect, is caused by availability heuristic, i.e., since HIV is such a famous disease with significant adverse effect to a person's health, people tend to think that the risks of having such sickness is also high and therefore they reject any possibility of having a kid with HIV positive around their kids.

    If my prediction is correct, imposing liability to the school will make no sense. You can't expect them to solve the problem that is out of their control (you can't control the preference of all the people in this world and it would be even harder if these people are already becoming your stakeholders), and it is likely that even when the kid is finally admitted, she will receive more discrimination from other kids and their respective parents (because we know that even when the kid is not admitted yet, some parents have already voiced their concerns and rejections). It's a bad game for the poor kid. Of course, this should not be the end of the world for the kid.

    Other schools might actually take this opportunity as a marketing tool. But to achieve that, they must state their policy from the beginning. As an example, they should say that their school is opened to any kids with HIV positive and that they will provide a safe environment for everyone when they open their school registration. Stating this from the beginning will have the effect of screening parents that might not agree to have their kids sharing a class room with a positive HIV kid and therefore, we can expect less rejection from other parents. Only parents who support such idea who will send their kids to the school and this will allow the creation of a better environment for the HIV positive kid.

    Borrowing the term from one of my Professors, Lior Strahilevitz, we can call this strategy as an exclusionary vibe. You effectively screen people who disagree with your policy and discourage them from getting into your community without having to say that you reject them. It's a double edge sword, it can be used to discriminate people, but it can also be used positively, as in creating a healthier environment for kids development. Furthermore, can this be a good business? I would think so, there are still many people who buy the idea that having a non-discriminatory school is good for the education of their children. And when these schools can attract many students, other schools will soon follow.

    To close this post, in dealing with hard cases like this, sometimes, imposing liability would only increase the costs for each parties involved and might not be beneficial for the kids. Using strategy to raise public awareness is good, but I would suggest not to continue with a legal fight unless we can ensure that the problem lies within the school itself and not the parents. Because if the other parents are the problem, punishing the school will only add more fire to these parents, and the end result might be backfired. Remember, you can't control people preferences, it would be more effective to screen these people out and build a different business. If it is profitable, and my guess is: it is, the problem can be solved quicker than we thought.
  • Why I Favor Votes as Commodities rather than Duties


    A couple of days ago, I received an interesting comment from @tirtasusilo on my latest post. His question is: "How would you persuade someone who is against vote buying because he/she considers voting a duty, not a commodity?" First of all, a rational person should not consider voting as merely a duty as I argue here. But surely, giving that kind of answer would be cheap. So I'll try to answer that question through this post.

    What would a person think about his vote if he considers it as a duty? My assumption: he takes voting as a way to do the right thing. He votes because he believes that he does something for the betterment of society. Consequently, voting should never be traded. You don't trade what is right only for money. While his notion might be tempting for a lot of people, I'm afraid I have to say that it is this notion that persuades political parties to use vote buying to get what they want.

    First of all, we cannot effectively prevent people from picking their own preferences, whether they want to protect the integrity of their votes or they think that voting is a crap mechanism which means nothing, or that voting is a valuable item that can be traded for a good price, etc. The fact that there are many preferences means that sly politicians can use different methods of persuasion for getting as many support as possible from the voters, including building an image as good politicians in front the media to get votes from the duty oriented guys and using tricky methods (including money and political promises) to gain additional votes from the commodity oriented guys. In this case, we are not maximizing the utility of the duty oriented guys, we're maximizing the utility of politicians and commodity oriented guys.

    Now, if duty oriented guys really want to maximize their interest, i.e. preventing politicians from vote buying, they should agree with the system that I proposed, i.e. legalizing vote buying with certain conditions. The reason is simple, such system is created for the sole purpose of reducing vote buying, it is created not to let people trade their votes like crazy but to keep people from buying and selling their votes. Think it as a more efficient solution that basically satisfies the interest of the voters (for getting a better election in term of fairness and quality) and imposes significant additional burden to politicians who dare to use money in getting their support.

    Sure, we can always resort to the old school style, such as making vote buying as an illegal act and enforcing heavy punishments against violators of vote buying restriction. The question is: will that be efficient in Indonesia case? How much money do you think that we have spent for the entire national and regional election? These costs include campaign costs, the "hidden" vote buying costs, candidates disputes costs, enforcement costs, etc. Not only that these costs are damn expensive, we still end up with buffoons as our leaders. And being rational, these buffoons will most likely try to do anything to recoup all of their costs during the election. After all, no sane people will go and spend most of his fortunes for securing a position if he don't expect some benefits from getting that position. What could be even worse than that?

    So, considering the above argument, if these duty oriented guys really care about doing the right thing, would they pick the "right" method that will produce the "not right" results, or would they pick the seemingly "not right" method that will produce the "right" results?
  • Once Again, In Defense of Vote Buying


    A week ago, I wrote about using vote buying mechanism to prevent political parties from buying our votes. You can see the article here. Furthermore, there is also an article from Greg Mankiw and Michael Sandel in 2007 on why vote buying should not be allowed. Before I update my proposal, I'll give some comments to Mankiw and Sandel's ideas.

    The Inherent Problem of Mankiw and Sandel Cases
     
    The main argument of Mankiw is that vote buying can produce externalities to third parties. I guess there's a grain of truth in his idea, but unfortunately, his example does not make any sense at all. I reproduce his case here for ease or reference:

    "Suppose three voters are deciding whether to provide a public good that costs $9, which would be financed by a $3 tax on each voter. Andy values the public good at $8, while Ben and Carl do not value it at all. Under majority voting, Ben and Carl vote against, and the public good does not get provided, which is the efficient outcome.

    Suppose, however, that Andy could buy Ben's vote for $4. He could then ensure the project gets passed. Andy is better off by $1 (the $8 benefit minus the $3 tax and the $4 price of the vote), Ben is better off by $1 (the $4 price of the vote minus the $3 tax), and Carl is worse off by $3 (the $3 tax). The Andy-Ben vote deal has negative externalities on Carl."

    What's the main problem of his case above that can be answered by public choice theory? His case stops at the fact that Carl is worse off by $3. If Carl is a rational person, what would he do? He can also offer to purchase Ben's votes for $2, after all, losing $2 dollar is better than losing $3 and for Ben, receiving $2 is surely more attractive than receiving a net benefit of $1 from Andy.

    Then what will Andy do? He can choose to increase his offer to $5 for Ben's vote and therefore receives no benefit from the policy. At this point, Andy's marginal cost equals his marginal benefit, it's the point where he should stop because any further increase on the price of Ben's vote will cause losses to him. What would be the proper response of Carl? He can stop, or he can also choose to offer $3 dollar for Ben's vote. It's the same for him both ways, if he stops, he will lose $3 anyway, so he still has the incentive to offer such $3 (marginal cost equals marginal benefit). Now, if Andy is rational, he will stop, because he knows that proceeding with the vote buying battle will only end up with further losses. How about Carl, should he pay Ben? No, because his offer is basically only valid when Andy still wants to buy Ben's vote. There is no need for him to pay Ben if in the end Carl cancels his plan. Of course you can say that under this circumstance, Andy will come again to offer Ben to sell his votes. True, but then Carl can also do the same and a problem of cycling will be created.

    Sandel's argument is more persuasive, he shows that it is possible for Andy to actually persuade Ben to establish a value for the proposal and therefore he will vote in favor of Andy's proposal without having Andy to buy Ben's vote. In this case, Sandel argues that the end result will be the same for both cases (involving vote buying or not), there will be some costs imposed to Carl. However, even in this case, Carl can always offer to buy Ben's vote for a price.

    Sandel says that suppose Ben values the proposal for $4 after hearing Andy's persuasion, meaning that he will reap a benefit of $1 if he vote for the proposal. What can Carl do? Of course, he will offer Ben $2. What will then Andy do? He can offer a price of $5 to buy Ben's vote and then Carl will offer Ben a price of $3, and Andy will face the same problem again. Another cycling will be made in Sandel's case.

    The simple problems created by Mankiw and Sandel actually resemble the real political life. It's a case of battle between interest groups where benefits will be spread to the majority by imposing costs to a group (wide spread benefit vs narrow cost). Of course, the group will not just sit and wait for the impeding doom. They will fight for their right and if they have to lose something, they will make sure that at least it shouldn't exceed their total expected costs should the problematic policy is promulgated. I'll deal with this issue in another post. Now, let's return to my further elaborated proposal.

    The Elaborated Proposal for Vote Buying

    Since I'm still in favor of vote buying for Indonesia, I'll try to elaborate more my original proposal in this post. Further comments and questions will be much appreciated.

    The basic principle is that in a general election, voting is the commodity, people are the sellers, and political parties are buyers. Now, what's the main reason for political parties to buy our votes? Assuming that these guys are rational, I would say that they buy our votes on the basis that the expected benefits that they will reap after they secure a position are still bigger than the total expected costs that they will incur during the election. The costs can include campaign costs and any penal sanctions that may be imposed to them if they're caught (vote buying is still illegal in Indonesia).

    However, as I've said numerous times, you can't separate law from the legal enforcement. In our country, it is safe to assume that the probability of being caught and sentenced for vote buying is quite slim, meaning the costs of getting caught is not that big and therefore there is less incentive for complying with the law. In this case my proposal would be: vote buying should be legalized, any political parties are allowed to actually come to us and offer a price for our vote. This is the basic proposal, but to ensure that it can work, I'll add some additional rules.

    1. Minimum Price Cap

    There should be a minimum price cap for our votes which reflects the expected benefits of the political parties should they win the election. I would say though that since the number of Indonesian citizens are very huge, increasing a little bit of the price of our votes would have significant financial impact to our political parties in case we can't assess their expected benefits (so at least we impose higher costs to them). Say that the current market price of our vote is around Rp50,000 per vote and then we increase that to Rp55,000 per vote. Assuming that there will be at least 100 million voters, an increase of Rp5,000 per vote is equal to an additional total costs of Rp500,000,000,000 or around US$55,000,000.

    2. Bidding System

    We can choose two systems to sell our votes. The first is by using the rule of Tullock Auction  (Gordon Tullock is a famous public choice theorist), where all political parties can bid for our votes and the highest bidder will win all of our votes, however, the ones who lose the bid will also be required to actually pay the amount that they have offered during the bid process to us. 

    Second, we can use a system where each political party can bid for our votes by paying us directly, but: (i) they are required to disclose the amount publicly (or we can ask the media to do that), (ii) they are required to deposit a non-refundable minimum amount to us for their offering (say 10-15% of the offer price); (iii) there would be no legal guarantee that the voter will vote in accordance with the bid winner, meaning, the winning political party can't go to the court to enforce their right to be voted by us, and (iv) the political parties can always change their offering to us until the date we walk to the election booth and set our vote.

    You may say that the above system is crazy, no one would like to enter into this kind of arrangement where the seller position is absolute. But that is precisely why we need to adapt this kind of system. In the current system, it is very hard to prove that political parties are involved in money politics. Have you ever considered the costs imposed to us for all of these hidden money politics and also the total costs of the national and general elections (all of those disputes in the Constitutional Court and the re-elections)? Not only it's a waste of tax payers money, it also does not provide us with the best candidates to lead our country.

    Under my proposed system, there would be less incentives for political parties to buy our votes. Why? First, we eliminate small parties by this system, leaving all the major parties in a competition to rule us all. Second, unless there is a super political party with infinite source of funds, no one will ever win the vote bidding.

    Let me tell you how this will work in practice by using an assumption that there are 3 parties, A, B, and C and that each party has more or less the same financial condition. Each of A, B, and C would have the incentives to win the election because they know that they can win the election by money and that the losing party will most likely lose everything. Since they all know the other party prices, they will continuously try to outbid the other party until they exhaust all of their money, creating a cycling problem. Of course in this case, A can make a coalition with B to defeat C in the vote bidding, but C can also offer B to instead cooperate with it and defeat A. Another infinite cycling will also be created here.

    Furthermore, since there is no guarantee that people will vote for they who pay the most, there are incentives for these parties to offer things other than money to induce people to vote them and I'm quite certain that there would be no case where we end up with an absolute winner after the vote bidding fight just because it pay the most.

    Their only solution is to actually agree to stop using money and induce voters to vote them for other reasons. True that under this regime, there would always be an incentive to betray such agreement, but since it will create another cycling problem, they will be forced to comply. Suppose A, B and C agree that they will not use money to buy our votes. Then, B realizes since it is still legal to buy our votes, they can try to buy our votes behind A and C. A and C, fearing something might happen behind their back, will start to have the same incentives and will also return to money politics. You see where this is going? So the conclusion is clear: stop using money to buy our votes or end up being caught in an infinite vicious cycle.

    Of course this is not a bullet proof mechanism, if A, B, and C have a very stable coalition, we would be in big trouble. But I guess that would not happen in Indonesia, after all , no groups of robbers will ever have a stable coalition since each of them would try to maximize their own benefits on the expense of others. For further readings, try searching in Google for Arrow's Impossibility Theorem.
  • You Think Our Legislators Suck? There's a Good Explanation For That!


    If there is only one thing that I can be confident about Indonesia, that must be the notion that most Indonesian citizens hate their legislators. How couldn't we? We rarely (read: never) hear any good news about them, and we oftenly (read: all the time) hear about how irresponsible they are with their job. Remember how they lavishly spend the state budget for their ridiculous comparative study in foreign countries? How they plan to build a new potentially (read: absolutely) useless new building? How they can't meet their yearly target for issuing new laws? (though considering their capabilities, this might be a bless in disguise)

    Before you're planning for a bloody revolution, try to think about it again. Aren't these legislators the product of our beloved democracy? After all, it's the people who vote them as our representatives. But why do they betray their own constituents? It seems as if they only think about themselves or the interest of certain minority groups who have the means and funds to purchase these legislators voices in the house of representative. In reality, these interest groups don't have enough voices to put the legislators in their current position. Yet, it's clear that these groups have more control over the legislators compared to the majority of the people, i.e. us. How could that be? Should we say that democracy is a total failure? Will we have a better chance under the rule of a benevolent dictator?

    The Problem of Collective Action
     
    Public Choice theory has a very good answer for this problem (by the way, public choice theory is basically the application of economic analysis into political theory). In short, we are facing the problem of collective action, which can be further elaborated into three main issues: (i) high transaction costs, making coordination within a large group almost impossible, (ii) free rider issue within uncoordinated group, keeping people from working together (creating a vicious cycle along the way), and (iii) internalization of the interest groups' costs among a lot of people tends to lower the average costs that must be borne by each individual, giving less incentive for the people to fight back. Let's discuss this one by one.  

    In general, we, the people, are pretty much diversified. There are too many scattered interests and the costs for coordinating us into a single systematic group where each person knows perfectly other people needs, would be too expensive. Unfortunately, the case is different with interest groups. Because they are smaller in numbers, it is easier for them to coordinate among themselves, meaning less transaction costs to work together in order to satisfy their interests. This might seem obvious and logical but most people tend to underestimate this important factor. Why do you think we embrace the idea of decentralization?

    Without any effective mechanism for coordination, surely it would be very difficult for the majority to fight back. Here is where the free rider issue arises. Suppose you really want to fight back the legislators and the interest groups, you want to show them that the people are not toys to play with. To do this, you plan to invest your money in making an awareness campaign, letting people know that their legislators suck and that we can't let that happen anymore in the next election. But just when you're about to cash your check, you start to think, "wait, if I'm putting my money now, will many people agree with me and support my effort, or will they just enjoy the fruit of my efforts by doing nothing?" Unless you're a saint or you have your own interest group, you'll probably reconsider your decision and then you will wait for other people to start the effort. See the vicious cycle here?

    Finally, there is a major issue of cost internalization. When interest groups and our legislators are making policies that benefit themselves, they impose additional social costs to the rest of the people. Imagine the wasted tax money that they use for unnecessary spending, or imagine the additional burden that consumers will need to pay when interest groups, say in the form of pollutants, can induce the legislators to let them free from being responsible for the externalities caused by them to the society. Yet, since these additional costs are imposed upon a diversified group, most of the people only bear a fraction of the costs. Not to mention that these costs can also be internalized for a long term, lowering the burden to the each individuals. The end result? Less incentives for the majority to fight back since they don't feel the impact as a whole. If they do, they would have done something to prevent the interest groups and the legislators from doing whatever they want. The above things may explain why we had a "successful" reformation (read: revolution) in 1998, but not nowadays.

    One Crazy Solution: Why Don't We Sell Our Votes?
     
    So what can we do? Firstly, we need to understand how the majority of Indonesian people view the voting process and how interest groups and legislators perceive the benefit of their position. Do Indonesian people take voting as an important matter or they consider it as a commodity that they can sell for certain price? Furthermore, how do the majority of our legislators perceive their position? For the greater good of the society or for their own benefit (calculating the benefits of having the position minus the costs of getting appointed).

    If the latter is correct, the solution would be to impose an excessive price for people's votes. My main idea is: rather than imposing a sanction for political parties which try to manipulate the vote by using money, give the freedom to them to use their money as they like. Why? In a country where the price of a vote is cheap and the legal authorities are weak, there is no way for a clean political party to win against those who use money in their campaign (money is real, talk is cheap). Having said that, why don't we say to the people that they should vote for whoever can purchase their votes for the highest price (of course there should be a minimum cap for such price reflecting as close as possible the benefit that the legislators might receive from getting the position, e.g payment from interest groups).

    The more expensive the vote is, the better. The expected results are: (i) interest groups and political parties will be forced to exhaust their own resources for wasteful acts, i.e. spending a lot of money though there will be only one winner, and (ii) along with the increase in costs of buying votes, less interest groups will join the game since the expected benefits are going down to almost nothing. Through this solution, we're imposing a collective action problem to the political parties. They might work well as a single group, but if we put them in a situation where the most optimal way to reduce their costs is to not paying anyone, they will also face the same problem that larger groups face.

    Let's see how my solution work. If parties continue to pay for getting their votes, some of the smaller parties will soon realize that it is not worth it and stop playing. At this stage, it is safe to assume that the remaining players are the major ones. You may think, now we're doomed, we have major players controlling the game and no one can fight it. Not necessarily! These major players have two options: (i) they can continue to compete in spending a lot of money for getting votes or (ii) they can reach a mutual consensus that no one will use money in their campaign. Of course since none of them can trust each other (collective action problem), they will continue to spend their money to the extent that they will have no more resources to spend. In the end, when they have exhausted all of their resources, they will be forced not to use money anymore in their campaign or they will face the risk of having a vicious cycle of unnecessary money spending.

    Suggestions and comments are welcomed.

  • An Introduction to Voting Paradox or Why Do You Even Thinking About Voting?


    Imagine that you are a voter in a general election for the newest legislative members. Suppose that you dedicate your own time to know each particular candidates in order to vote as an informed voter. You further realize that individually, your voting will be pretty much insignificant, you can't and will never know whether your voting will be a decisive one in case there are a lot of voters (let us just say that in the context of Indonesia, there are around 60 million voters). Calculating all the costs for doing your personal research and doing the act of vote itself plus your understanding of how insignificant your vote is, would you still call yourself as a rational being if in the end, you still vote? (To shed some light, the typical definition of rationality used in this discussion is the definition used by economist, rational person means a person who act for his own best interest)

    This is the basic premise of the Voting Paradox's concept, at least the first part of it (I'll deal with the second part later). It genuinely asks why rational people vote even though the circumstances show that it's an useless act and costly. Is this a solid evidence that people are irrational? Or is there something else that we miss? From what I have read, there are a lot of explanations for this behavior, but no solid answers. Nevertheless, for the sake of discussion, I guess it would not be a problem if I share some of these theories to my readers. Maybe one of you can provide a better explanation.

    Voting as a Way to Express Your Voice
     
    The first theory argues that people vote because it is a way to express their voice. It might not be effective, but hey, people have not found a better way anyway, so why don't with stick with voting? Under this theory the act of voting is considered as a type of consumption. The satisfaction of voting comes from the act of voting itself, i.e. shouting your opinion and hoping that somehow your voice matters. At first, I consider this as a ridiculous theory, but then I realize, I'm doing the same with my blog :p

    What can we conclude from this theory? Since the rationality is derived from the satisfaction of doing the act of voting, such satisfaction comes with certain expectation, there is an inherent cost and benefit analysis here. If you know the probability of your vote being significant is small, and thus the benefits of voting are uncertain, you would be less likely to vote if the costs of doing so are increased. A simple conclusion but apparently this is supported by some empirical findings. Some good examples, people are less likely to vote in a rainy day or if the voting location is too far from their home or if the registration process is too complicated.

    Voting as a Strategic Act

    The second theory argues that people vote when they think it is a strategic one. I would guess that the applicability of this theory is limited. First, there are not many occasions where voting can be a strategic one, such as in a election where the results will be close. Second, while this might work in smaller groups, it is difficult to asses when your voting will be a strategic one in terms of big elections.

    Voting Due To Group Mobilization

    The third theory's basic argument is simple, people vote due to group "pressures". I can agree with this. Sometimes, group pressures is the best way to encourage people to vote, whatever the platform of the group is. And I have a very good example of this behavior. In my university days, I saw how the University's Islamic student organization encouraged their members to vote for their candidates for student senates and they were quite persuasive in doing this (although persuasive might be an understatement). And these guys have won the election for many times. How can they win the election even though they are not the majority? Well it seems, being "rational people," the other students chose not to participate in the voting process, thus, giving a major benefit to the groups who vote militantly. This end result actually has a strong connection with our last theory.

    Voting as A Game of Cat and Mouse

    Suppose that we know that most people are rational and there is a huge probability that they will not vote since it's an useless act. In this kind of situation, what will you think? If you vote now, you voice will absolutely matter! You will be the determinant of the voting result. But then again, when all the people think the same, we'll back to square one, i.e. people are returning to the voting chambers, meaning your voice becomes worthless again. See how this resembles a game of cat and mouse?

    It should be noted, however, that while this game can be cyclical in theory, in practice it can actually alter the end results. My case of the Islamic student organization is a good example. Other students didn't vote, they were skeptical with the election. Now, as a rational person, what would you do in the place of the Islamic student organization? Of course the answer is: gathering all the like minded people to vote for your interest and beat the majority that have chosen not to vote.

    Conclusion

    So, in the end, can we say that voting is an irrational act? Is there any Voting Paradox? I still don't have an exact answer. But my gut feeling says that voting is a rational act. My reason is simple, as long as the costs of doing so is not that significant, you should always vote and even better, encourage other people to vote too. And when calculating the cost of voting, you must also calculate the costs of not voting, such as getting people that you hate to lead you, or even worse, getting incompetent people that will ruin your life  as your leader and you don't have any mechanism to put them down other than a bloody revolution (yeah, I'm talking about our honorable members of legislative board). I guess this is something that missing from the equation. There are costs and benefits of voting, but on the other side, there are also costs and benefits of not voting. To be an informed voter, we need to calculate both, or else, you'll end up thinking that you a are rational person, though in reality, you're just an ignorant fool.

    Note: Most of my materials are derived from Stearns & Zywicki's Public Choice - Concepts and Applications in Law. A highly recommended book for the student of Public Choice Theory and anyone interested with Public Policy.

  • The Protection of Criminal Suspects in Law and Economics Perspective

    Forthcoming in Jurnal Teropong Edisi RUU KUHAP 2015 | 23 Pages | Posted: 10 May 2015 | Date Written: April 28, 2015

    Public Choice Theory and its Application in Indonesian Legislation System

    24 Pages | Posted: 8 Oct 2012 | Last revised: 8 Nov 2014 | Date Written: October 8, 2012

    Special Purpose Vehicle in Law and Economics Perspective

    Forthcoming in Journal of Indonesia Corruption Watch, 'Pemberantasan Kejahatan Korupsi dan Pencucian Uang yang Dilakukan Korporasi di Sektor Kehutanan', 2013 | 15 Pages | Posted: 22 Aug 2013 | Date Written: August 18, 2013

    Legal Positivism and Law and Economics -- A Defense

    Third Indonesian National Conference of Legal Philosophy, 27-28 August 2013 | 17 Pages | Posted: 22 Aug 2013 | Last revised: 3 Sep 2013 | Date Written: August 22, 2013

    Economic Analysis of Rape Crime: An Introduction

    Jurnal Hukum Jentera Vol 22, No 7 (2012) Januari-April | 14 Pages | Posted: 12 Nov 2011 | Last revised: 8 Oct 2012 | Date Written: May 7, 2012

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