Pub Date : 2024-01-31DOI: 10.28946/slrev.vol8.iss1.3157.pp133-151
Mahesa Rannie, Retno Saraswati, Fifiana Wisnaeni
The attempt to purify Indonesia's multiparty presidential system was only reflected after the Third Amendment to the 1945 Constitution. However, it took work to implement it. In practice. Various measures have been taken, including party alliances and introducing voting barriers in parliamentary elections. Therefore, analysing the relationship between electoral thresholds and their ideal proportions in the form of legal-political reforms to strengthen the Indonesian presidential system is interesting. This is in line with the purpose of this study, which is to uncover and analyse the legal politics of electoral thresholds in an attempt to strengthen the presidential system of government in Indonesia. The approach adopted in this study is a theoretical approach with legal, conceptual, comparative and historical approaches. This study concludes that the legitimate political renewal of the electoral vote threshold is not closely related to efforts to strengthen Indonesia's system of multiparty presidential government. The ideal way to reform the legal, political threshold for electoral votes would be to set the parliamentary threshold at 2.5%, but at the same time tighten controls over the parties participating in the election, and the 2.5% threshold serves as President to maintain a balance between the parliamentary and presidential thresholds. In addition, it is also important to strengthen consensus (consensus democracy) among coalition political parties. There is still a desire to abolish the presidential threshold through the People's Representative Council (DPR) instead of the Constitutional Court (MK).
{"title":"Does the Reform of the Parliamentary and Presidential Threshold Strengthen the Presidential System in Indonesia?","authors":"Mahesa Rannie, Retno Saraswati, Fifiana Wisnaeni","doi":"10.28946/slrev.vol8.iss1.3157.pp133-151","DOIUrl":"https://doi.org/10.28946/slrev.vol8.iss1.3157.pp133-151","url":null,"abstract":"The attempt to purify Indonesia's multiparty presidential system was only reflected after the Third Amendment to the 1945 Constitution. However, it took work to implement it. In practice. Various measures have been taken, including party alliances and introducing voting barriers in parliamentary elections. Therefore, analysing the relationship between electoral thresholds and their ideal proportions in the form of legal-political reforms to strengthen the Indonesian presidential system is interesting. This is in line with the purpose of this study, which is to uncover and analyse the legal politics of electoral thresholds in an attempt to strengthen the presidential system of government in Indonesia. The approach adopted in this study is a theoretical approach with legal, conceptual, comparative and historical approaches. This study concludes that the legitimate political renewal of the electoral vote threshold is not closely related to efforts to strengthen Indonesia's system of multiparty presidential government. The ideal way to reform the legal, political threshold for electoral votes would be to set the parliamentary threshold at 2.5%, but at the same time tighten controls over the parties participating in the election, and the 2.5% threshold serves as President to maintain a balance between the parliamentary and presidential thresholds. In addition, it is also important to strengthen consensus (consensus democracy) among coalition political parties. There is still a desire to abolish the presidential threshold through the People's Representative Council (DPR) instead of the Constitutional Court (MK).","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"194 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140475249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-31DOI: 10.28946/slrev.vol8.iss1.3014.pp115-132
Eva Achjani Zulfa, Artha Febriansyah, Jelang Ramadhan, I. Hayatullah
This article explores the limitations of using physical force in educating children in Indonesia. It examines the prevalence of violence by parents and teachers in education. Increased public awareness and concern for children's rights have made the use of violence in education a taboo. This research uses a qualitative method with secondary data using literature and analysing court decisions from the human rights perspective. This study aims to determine the limits of tolerance for violence and corporal punishment. The court decisions have been taken as the data to be analysed from various locations where decisions have been issued were taken into consideration to depict the similarities and differences in deciding matters related to corporal punishment towards children. This article examines historical, cultural, and religious factors that influence the use of physical force, including interpretations of Islamic teachings. This paper also presents arguments for and against corporal punishment as an educational tool. This research sheds light on the complexities surrounding the permissibility of physical force in children's education and the conflicting views in society, providing insight into evolving understandings and legal perspectives on the subject.
{"title":"The Use of Physical Strength in Children’s Education: Learning from Indonesian Court’s Judgments","authors":"Eva Achjani Zulfa, Artha Febriansyah, Jelang Ramadhan, I. Hayatullah","doi":"10.28946/slrev.vol8.iss1.3014.pp115-132","DOIUrl":"https://doi.org/10.28946/slrev.vol8.iss1.3014.pp115-132","url":null,"abstract":"This article explores the limitations of using physical force in educating children in Indonesia. It examines the prevalence of violence by parents and teachers in education. Increased public awareness and concern for children's rights have made the use of violence in education a taboo. This research uses a qualitative method with secondary data using literature and analysing court decisions from the human rights perspective. This study aims to determine the limits of tolerance for violence and corporal punishment. The court decisions have been taken as the data to be analysed from various locations where decisions have been issued were taken into consideration to depict the similarities and differences in deciding matters related to corporal punishment towards children. This article examines historical, cultural, and religious factors that influence the use of physical force, including interpretations of Islamic teachings. This paper also presents arguments for and against corporal punishment as an educational tool. This research sheds light on the complexities surrounding the permissibility of physical force in children's education and the conflicting views in society, providing insight into evolving understandings and legal perspectives on the subject.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"59 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140476397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-01DOI: 10.28946/slrev.vol7.iss2.2542.pp350-367
Belardo Prasetya Mega Jaya, Ridwan Ridwan, Rully Syahrul Mucharom, Dwi Edi Wibowo, Siti Nur Aisah, Sulastri Sulastri, Novia Bella Alifvia
The legal framework for ASEAN cooperation in combating the crime of trafficking in persons, particularly women and children, led to the establishment of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP). This convention recognises that trafficking constitutes a violation of human rights and a crime against human dignity. However, the implementation of ACTIP faces numerous challenges that require strategic solutions. This research aims to examine the implementation of the ACTIP policy concerning human trafficking, assess ASEAN's efforts in tackling trafficking in women and children in the Southeast Asian region, and criticise the implementation of ACTIP. The research adopts a descriptive-normative method. The ACTIP Convention regulates provisions for dealing with trafficking problems, both prevention and handling, which are the responsibility of the central and local governments as well as the community by establishing various task forces in the implementation of prevention and control of human trafficking that occurs. ASEAN has taken several steps in the fight against human trafficking. Many obstacles must be faced to eradicate the criminal act of trafficking in persons. So. it is necessary to take several actions in implementing the ACTIP. ASEAN Members must cooperate either bilaterally or multilaterally so that the ACTIP arrangement can be implemented effectively.
{"title":"Criticising the Implementation of the ACTIP in Southeast Asia","authors":"Belardo Prasetya Mega Jaya, Ridwan Ridwan, Rully Syahrul Mucharom, Dwi Edi Wibowo, Siti Nur Aisah, Sulastri Sulastri, Novia Bella Alifvia","doi":"10.28946/slrev.vol7.iss2.2542.pp350-367","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2542.pp350-367","url":null,"abstract":"The legal framework for ASEAN cooperation in combating the crime of trafficking in persons, particularly women and children, led to the establishment of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP). This convention recognises that trafficking constitutes a violation of human rights and a crime against human dignity. However, the implementation of ACTIP faces numerous challenges that require strategic solutions. This research aims to examine the implementation of the ACTIP policy concerning human trafficking, assess ASEAN's efforts in tackling trafficking in women and children in the Southeast Asian region, and criticise the implementation of ACTIP. The research adopts a descriptive-normative method. The ACTIP Convention regulates provisions for dealing with trafficking problems, both prevention and handling, which are the responsibility of the central and local governments as well as the community by establishing various task forces in the implementation of prevention and control of human trafficking that occurs. ASEAN has taken several steps in the fight against human trafficking. Many obstacles must be faced to eradicate the criminal act of trafficking in persons. So. it is necessary to take several actions in implementing the ACTIP. ASEAN Members must cooperate either bilaterally or multilaterally so that the ACTIP arrangement can be implemented effectively.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134997228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Video conferencing through video call platforms, such as Zoom and Google Meet, has become a useful option for judges holding criminal trials during the COVID-19 pandemic in many countries. This trend also occurred in Indonesia. Some judges believe that video conferencing technology will help them accomplish justice in an emergency, referring to the legal maxim 'salus populi suprema lex esto’ or ‘let the welfare of the people be the supreme law’. Although virtual trials assist courts in preventing the spread of the deadly virus, they have also affected the work of judges to reach the substantive truth. This paper examines the challenges concerning the rights of the accused and technological matters that have emerged under the use of virtual courtrooms and, in some ways, led to unfair trial procedures. We argue that the absence of laws that regulate virtual courtrooms, along with an outdated the Code of Criminal Procedure in Indonesia (KUHAP), can lead to miscarriages of justice. The arguments presented in this article are based on survey data conducted from December 2020 to January 2021. The respondents are judges from Indonesia's western, middle, and eastern regions who used video conference facilities for criminal court hearings during the COVID-19 outbreak of 2020-2021.
在新冠肺炎疫情期间，通过Zoom、Google Meet等视频通话平台进行视频会议，在许多国家成为法官进行刑事审判的有用选择。这一趋势也发生在印度尼西亚。一些法官认为，视频会议技术将有助于他们在紧急情况下伸张正义，他们引用了法律格言“salus populi suprema lex to”，即“让人民的福利成为最高法律”。虽然虚拟审判有助于法院防止致命病毒的传播，但也影响了法官查明实质性真相的工作。本文审查了在使用虚拟法庭的情况下出现的有关被告权利和技术问题的挑战，这些挑战在某些方面导致了不公平的审判程序。我们认为，缺乏规范虚拟法庭的法律，加上过时的《印度尼西亚刑事诉讼法》(KUHAP)，可能导致司法不公。本文提出的论点基于2020年12月至2021年1月的调查数据。受访者是来自印度尼西亚西部、中部和东部地区的法官，他们在2020-2021年COVID-19爆发期间使用视频会议设施进行刑事法庭听证会。
{"title":"Finding the Truth in A Virtual Courtroom: Criminal Trials in Indonesia during the COVID-19","authors":"Febby Mutiara Nelson, Intan Hendrawati, Rafiqa Qurrata A’yun","doi":"10.28946/slrev.vol7.iss2.2465.pp228-243","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2465.pp228-243","url":null,"abstract":"Video conferencing through video call platforms, such as Zoom and Google Meet, has become a useful option for judges holding criminal trials during the COVID-19 pandemic in many countries. This trend also occurred in Indonesia. Some judges believe that video conferencing technology will help them accomplish justice in an emergency, referring to the legal maxim 'salus populi suprema lex esto’ or ‘let the welfare of the people be the supreme law’. Although virtual trials assist courts in preventing the spread of the deadly virus, they have also affected the work of judges to reach the substantive truth. This paper examines the challenges concerning the rights of the accused and technological matters that have emerged under the use of virtual courtrooms and, in some ways, led to unfair trial procedures. We argue that the absence of laws that regulate virtual courtrooms, along with an outdated the Code of Criminal Procedure in Indonesia (KUHAP), can lead to miscarriages of justice. The arguments presented in this article are based on survey data conducted from December 2020 to January 2021. The respondents are judges from Indonesia's western, middle, and eastern regions who used video conference facilities for criminal court hearings during the COVID-19 outbreak of 2020-2021.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Foreign direct investment (FDI) refers to an investment into a company or organisation through long-term or overseas expansion acquisition with the hope of forming a long-term relationship. It is a viable business tool utilised in businesses across the globe. However, in Iraq, despite the investment laws and other regulations to boost foreign direct investment, investors still need to be convinced about investing in Iraq due to several factors that might affect their investments. Many countries and some Arab countries have advanced in their FDIs, leaving Iraq behind, one of which is the UAE. Therefore, this research aims to analyse Iraqi's FDI vis-à-vis what is obtainable in the UAE to proffer effective and appropriate recommendations to be implemented to boost the Iraqi FDI for better future investments. To achieve this, the study utilised a theoretical method of review of existing literature and relevant legislations in the two jurisdictions, as well as a comparative analysis to analyse the key areas hindering the effectiveness of the Iraqi FDI compared to what is obtainable in the UAE. It was discovered that besides the dispute resolution mechanism, corruption, poor infrastructure, unskilled labour, political instability and the financial sector, the legal framework is inadequate, incomprehensive, and discouraging to foreign investors. However, these hindrances are not prevalent in the UAE. Hence, the suggestion for Iraq to boost its political stability, social security, improve its business climate and transfer knowledge and practices from the UAE to achieve a robust FDI in Iraq in fulfilment of SDG 17.
外国直接投资(Foreign direct investment, FDI)是指通过长期或海外扩张收购的方式对某一公司或组织进行投资，以期形成长期的合作关系。它是一种可行的商业工具，在全球范围内的企业中使用。然而，在伊拉克，尽管有促进外国直接投资的投资法和其他法规，由于几个可能影响他们投资的因素，投资者仍然需要说服他们在伊拉克投资。许多国家和一些阿拉伯国家在外国直接投资方面取得了进步，把伊拉克甩在了后面，其中之一就是阿联酋。因此，本研究旨在分析伊拉克的外国直接投资访问-à-vis在阿联酋可以获得什么，以提供有效和适当的建议，以促进伊拉克的外国直接投资，以获得更好的未来投资。为了实现这一目标，该研究采用了一种理论方法，对两个司法管辖区的现有文献和相关立法进行了审查，并进行了比较分析，分析了与阿联酋相比，阻碍伊拉克外国直接投资有效性的关键领域。调查发现，除了争端解决机制、腐败、基础设施差、缺乏技能的劳工、政治不稳定和金融部门之外，法律框架也不充分、不全面，并使外国投资者感到沮丧。然而，这些障碍在阿联酋并不普遍。因此，建议伊拉克加强其政治稳定和社会安全，改善其商业环境，并从阿联酋转移知识和实践，以在伊拉克实现强劲的外国直接投资，以实现可持续发展目标17。
{"title":"Foreign Direct Investment: A Comparative Analysis between Iraq and the UAE","authors":"Ghazwan Abdulhadi Alabdalrahman, Haniff Ahamat, Nabeel Mahdi Althabhawi","doi":"10.28946/slrev.vol7.iss2.2773.pp262-286","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2773.pp262-286","url":null,"abstract":"Foreign direct investment (FDI) refers to an investment into a company or organisation through long-term or overseas expansion acquisition with the hope of forming a long-term relationship. It is a viable business tool utilised in businesses across the globe. However, in Iraq, despite the investment laws and other regulations to boost foreign direct investment, investors still need to be convinced about investing in Iraq due to several factors that might affect their investments. Many countries and some Arab countries have advanced in their FDIs, leaving Iraq behind, one of which is the UAE. Therefore, this research aims to analyse Iraqi's FDI vis-à-vis what is obtainable in the UAE to proffer effective and appropriate recommendations to be implemented to boost the Iraqi FDI for better future investments. To achieve this, the study utilised a theoretical method of review of existing literature and relevant legislations in the two jurisdictions, as well as a comparative analysis to analyse the key areas hindering the effectiveness of the Iraqi FDI compared to what is obtainable in the UAE. It was discovered that besides the dispute resolution mechanism, corruption, poor infrastructure, unskilled labour, political instability and the financial sector, the legal framework is inadequate, incomprehensive, and discouraging to foreign investors. However, these hindrances are not prevalent in the UAE. Hence, the suggestion for Iraq to boost its political stability, social security, improve its business climate and transfer knowledge and practices from the UAE to achieve a robust FDI in Iraq in fulfilment of SDG 17.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Malaysian Parliament approved three Bills on Intellectual Property rights. One of it is the Geographical Indications Bill 2021, repealing the Geographical Indications Act 2000 (the Old Act). The new Bill received royal assent on 16 March 2022 and came into operation on 18 March 2022, known as the Geographical Indications Act 2022 (the New Act). The revisions made in the New Act were essential to harmonise intellectual property standards in Malaysia and facilitate the country’s accession to the Marrakesh Treaty. These amendments ensure that Malaysia adheres to the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and fulfils its obligations under the Regional Comprehensive Economic Partnership (RCEP). The purpose of this paper is to examine the salient features introduced by the provisions of the New Act and to examine how the enhanced provisions attempt to realign intellectual property standards in Malaysia concerning Malaysia's broader obligations under the Regional Comprehensive Economic Partnership which have come into effect in Malaysia on 18 March 2022. The methodology employed in this research is doctrinal, especially focusing on the interpretation and analysis of the statutory provisions. In light of the changes in the New Act, New Regulations and the New Guidelines, the paper concludes by forwarding several recommended best practices to be considered by registered proprietors in the country.
{"title":"A Discourse on the Malaysian Geographical Indications Act","authors":"Manique Cooray, Jia Chern Lee, Justin Johari Azman","doi":"10.28946/slrev.vol7.iss2.2741.pp368-383","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2741.pp368-383","url":null,"abstract":"The Malaysian Parliament approved three Bills on Intellectual Property rights. One of it is the Geographical Indications Bill 2021, repealing the Geographical Indications Act 2000 (the Old Act). The new Bill received royal assent on 16 March 2022 and came into operation on 18 March 2022, known as the Geographical Indications Act 2022 (the New Act). The revisions made in the New Act were essential to harmonise intellectual property standards in Malaysia and facilitate the country’s accession to the Marrakesh Treaty. These amendments ensure that Malaysia adheres to the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and fulfils its obligations under the Regional Comprehensive Economic Partnership (RCEP). The purpose of this paper is to examine the salient features introduced by the provisions of the New Act and to examine how the enhanced provisions attempt to realign intellectual property standards in Malaysia concerning Malaysia's broader obligations under the Regional Comprehensive Economic Partnership which have come into effect in Malaysia on 18 March 2022. The methodology employed in this research is doctrinal, especially focusing on the interpretation and analysis of the statutory provisions. In light of the changes in the New Act, New Regulations and the New Guidelines, the paper concludes by forwarding several recommended best practices to be considered by registered proprietors in the country.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313762","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.28946/slrev.vol7.iss2.1092.pp300-317
Yulia Yulia, Zinatul Ashiqin Zainol, Fatahillah F
The Beijing Treaty allows performers to benefit from using audiovisual fixation for commercial purposes. This treaty is the first treaty specifically to protect against the head of the show. Indonesia has ratified the Beijing Treaty in order to give protection to the performers. There are provisions that performers can maintain moral rights until death (but not after death) and until the end of economic rights and refuse all forms of distortion, excision and modification that damage the reputation of performers. This article analyses the protection of the rights of performers whose works were uploaded without permission to YouTube under Indonesian Copyright Law 2014. This research is normative juridical research with a conceptual and statutory approach. The result is that the show performers’ performance rights under the Beijing Agreement have been adopted in the 2014 Indonesian Copyright Act, even though there are some differences in defining the fixation and scope of the show rights to the fixed performance terms. The 2014 Indonesian Copyright Law has indefinitely maximised the protection of performers' moral rights. Moreover, the Indonesian Copyright Law 2014 Act No. 28 states that the rights of performers cannot be eliminated or cannot be removed for any reason, including their economic rights, such as a right to carry out themselves, give permission, prohibit broadcast or communication the performance to other parties, come under by using online media. Therefore, when an illegal act such as uploading the performance of performers without permission violates Copyright Law, dan perpetrators can be sued.
{"title":"Protection of Performers’ Rights in Indonesian Copyright Law: Copyrighted Works Uploaded to YouTube","authors":"Yulia Yulia, Zinatul Ashiqin Zainol, Fatahillah F","doi":"10.28946/slrev.vol7.iss2.1092.pp300-317","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.1092.pp300-317","url":null,"abstract":"The Beijing Treaty allows performers to benefit from using audiovisual fixation for commercial purposes. This treaty is the first treaty specifically to protect against the head of the show. Indonesia has ratified the Beijing Treaty in order to give protection to the performers. There are provisions that performers can maintain moral rights until death (but not after death) and until the end of economic rights and refuse all forms of distortion, excision and modification that damage the reputation of performers. This article analyses the protection of the rights of performers whose works were uploaded without permission to YouTube under Indonesian Copyright Law 2014. This research is normative juridical research with a conceptual and statutory approach. The result is that the show performers’ performance rights under the Beijing Agreement have been adopted in the 2014 Indonesian Copyright Act, even though there are some differences in defining the fixation and scope of the show rights to the fixed performance terms. The 2014 Indonesian Copyright Law has indefinitely maximised the protection of performers' moral rights. Moreover, the Indonesian Copyright Law 2014 Act No. 28 states that the rights of performers cannot be eliminated or cannot be removed for any reason, including their economic rights, such as a right to carry out themselves, give permission, prohibit broadcast or communication the performance to other parties, come under by using online media. Therefore, when an illegal act such as uploading the performance of performers without permission violates Copyright Law, dan perpetrators can be sued.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.28946/slrev.vol7.iss2.2134.pp190-208
I Dewa Gede Palguna, Bima Kumara Dwi Atmaja
Originalism is a viewpoint that is one of the methods and theories of constitutional interpretation. It remains controversial in its application, particularly in the decisions of the United States Supreme Court. Originalism first held that the interpretation of the United States Constitution must follow the original intent of the constitutional drafters or those who ratified it. However, in the 1990s, this stance changed, namely that the interpretation of the Constitution must follow the original meaning of the constitutional text. The aim of this research is to understand the anti-mainstream concepts of originalism interpretation. The fundamental problem lies not to answer which one is better between originalist and non-originalist. Instead, it rather depends on how to use this approach in several cases. It is possible that in one case using an originalist approach will be more relevant and appropriate, while in another case it will be absurd, and it is happened in several decisions in the United States. The Normative legal research method was used in this research with five major approaches. Those are the statute, conceptual, historical, casuistry, and comparative approaches. The result of this study indicates that: first, originalism is a stance directly related to perspective on the issue of interpretation of the Constitution. Meanwhile, the interpretation of the Constitution itself is an attempt to understand the definitions contained in the Constitution and the objectives it aims to achieve. Second, reflecting on the practice in the United States, the originalism approach may be more relevant on some occasions. However, originalism will be absurd if applied on other occasions because society has changed so much. Therefore, in such circumstances, getting out of originalism is a necessity.
{"title":"“Originalism” of Interpretation in the United States Constitution","authors":"I Dewa Gede Palguna, Bima Kumara Dwi Atmaja","doi":"10.28946/slrev.vol7.iss2.2134.pp190-208","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2134.pp190-208","url":null,"abstract":"Originalism is a viewpoint that is one of the methods and theories of constitutional interpretation. It remains controversial in its application, particularly in the decisions of the United States Supreme Court. Originalism first held that the interpretation of the United States Constitution must follow the original intent of the constitutional drafters or those who ratified it. However, in the 1990s, this stance changed, namely that the interpretation of the Constitution must follow the original meaning of the constitutional text. The aim of this research is to understand the anti-mainstream concepts of originalism interpretation. The fundamental problem lies not to answer which one is better between originalist and non-originalist. Instead, it rather depends on how to use this approach in several cases. It is possible that in one case using an originalist approach will be more relevant and appropriate, while in another case it will be absurd, and it is happened in several decisions in the United States. The Normative legal research method was used in this research with five major approaches. Those are the statute, conceptual, historical, casuistry, and comparative approaches. The result of this study indicates that: first, originalism is a stance directly related to perspective on the issue of interpretation of the Constitution. Meanwhile, the interpretation of the Constitution itself is an attempt to understand the definitions contained in the Constitution and the objectives it aims to achieve. Second, reflecting on the practice in the United States, the originalism approach may be more relevant on some occasions. However, originalism will be absurd if applied on other occasions because society has changed so much. Therefore, in such circumstances, getting out of originalism is a necessity.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.28946/slrev.vol7.iss2.2502.pp209-227
Harun Halilović
Bosnia and Herzegovina (B&H) has difficulty integrating and moving closer to the goal of becoming a member of the European Union (EU). From the legal perspective, the main issue is the need to fulfil the accession criteria. The article aims to examine the relationship between the obligations under the European Convention on Human Rights and Basic Freedoms (ECHR) and the obligations related to the European Union (EU) accession process, with emphasis on Bosnia and Herzegovina (B&H) as an EU membership candidate country. At first sight, those two obligations are separate. However, upon close examination, a strong link between those two obligations can be established using normative research with a historical approach, statute and case-based approach. On the other hand, the constitutional system of B&H has been described as discriminatory by numerous judgments of the European Court of Human Rights (ECtHR) and, most prominently, by the Sejdic-Finci case. B&H has difficulties implementing those judgments. Implementing those judgments is also set as one of the requirements of EU accession. Even if the two obligations seem separate at first sight, the ECHR has a special position within the law of the EU and is especially important in the accession of new Member States, including B&H. The research results show a special position of the ECHR in EU law and a link between the obligations under the ECHR and EU accession.
{"title":"Relationship between the Obligations from the European Convention on Human Rights and the Accession to the European Union","authors":"Harun Halilović","doi":"10.28946/slrev.vol7.iss2.2502.pp209-227","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2502.pp209-227","url":null,"abstract":"Bosnia and Herzegovina (B&H) has difficulty integrating and moving closer to the goal of becoming a member of the European Union (EU). From the legal perspective, the main issue is the need to fulfil the accession criteria. The article aims to examine the relationship between the obligations under the European Convention on Human Rights and Basic Freedoms (ECHR) and the obligations related to the European Union (EU) accession process, with emphasis on Bosnia and Herzegovina (B&H) as an EU membership candidate country. At first sight, those two obligations are separate. However, upon close examination, a strong link between those two obligations can be established using normative research with a historical approach, statute and case-based approach. On the other hand, the constitutional system of B&H has been described as discriminatory by numerous judgments of the European Court of Human Rights (ECtHR) and, most prominently, by the Sejdic-Finci case. B&H has difficulties implementing those judgments. Implementing those judgments is also set as one of the requirements of EU accession. Even if the two obligations seem separate at first sight, the ECHR has a special position within the law of the EU and is especially important in the accession of new Member States, including B&H. The research results show a special position of the ECHR in EU law and a link between the obligations under the ECHR and EU accession.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.28946/slrev.vol7.iss2.2734.pp335-349
Atik Krustiyati, Gita Venolita Valentina Gea
Development of downstream on the mining industry has been encouraged by the government of Indonesia these past years. With the increasing demand for nickel ore, the government focused on implementing downstream in this sector. Establishing an export ban and domestic processing requirement on nickel ore caused the EU to challenge Indonesia before the DSB WTO. In its report to the Panel, it was concluded that Indonesia had violated the provisions of GATT 1994. While it is understandable that Indonesia has absolute sovereignty over its natural resources, it is also bounded to international organisations and regulations, for it has expressed its consent. This paper aims to examine the analysis by the Panel on what caused Indonesia to decide as the losing party and how Indonesia would implement the development downstream in the middle of its sovereignty and obligations on an international level. Through a juridical normative method, it is concluded that Indonesia had failed to comply with the provisions of GATT 1994 that obliged it. It does not mean it has no sovereignty towards its natural resources, for it has agreed to be bound by the provisions. In order to exercise downstream development, it is recommended that Indonesia create national policies or regulations related to adhering to the provisions of the WTO. A cautious approach to governing the downstream may prevent potentially damaging disputes.
{"title":"The Paradox of Downstream Mining Industry Development in Indonesia: Analysis and Challenges","authors":"Atik Krustiyati, Gita Venolita Valentina Gea","doi":"10.28946/slrev.vol7.iss2.2734.pp335-349","DOIUrl":"https://doi.org/10.28946/slrev.vol7.iss2.2734.pp335-349","url":null,"abstract":"Development of downstream on the mining industry has been encouraged by the government of Indonesia these past years. With the increasing demand for nickel ore, the government focused on implementing downstream in this sector. Establishing an export ban and domestic processing requirement on nickel ore caused the EU to challenge Indonesia before the DSB WTO. In its report to the Panel, it was concluded that Indonesia had violated the provisions of GATT 1994. While it is understandable that Indonesia has absolute sovereignty over its natural resources, it is also bounded to international organisations and regulations, for it has expressed its consent. This paper aims to examine the analysis by the Panel on what caused Indonesia to decide as the losing party and how Indonesia would implement the development downstream in the middle of its sovereignty and obligations on an international level. Through a juridical normative method, it is concluded that Indonesia had failed to comply with the provisions of GATT 1994 that obliged it. It does not mean it has no sovereignty towards its natural resources, for it has agreed to be bound by the provisions. In order to exercise downstream development, it is recommended that Indonesia create national policies or regulations related to adhering to the provisions of the WTO. A cautious approach to governing the downstream may prevent potentially damaging disputes.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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