Pub Date : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.974.PP71-85
Y. Annalisa, Murzal Murzal, Rizka Nurliyantika
Shipping between domestic ports must be transported by ships with Indonesian flags and operated by national shipping companies, meaning the cabotage principle. The aim is to prevent and reduce dependence on foreign ships carrying out Indonesia's maritime territory. However, in regulating and implementing the cabotage principle, it is not sure that it can be applied absolutely, which can be interpreted as not reflecting legal certainty. This study aims to analyze the legal certainty of implementation of the cabotage principle in Indonesian territorial waters. This research is a normative study that uses legal, historical, interpretation and case approaches. The case and interpretation approaches are used to examine the cabotage principle concept in legislation and several relevant cases brought to Indonesian courts. The results shows that the regulation of the cabotage principle on sea transportation is found in the form of laws, presidential regulations, presidential instructions and ministerial regulations. However, in other various regulations, the cabotage principle does not apply absolutely (semi-protectionist) or inconsequently. On the one hand, this is because it prohibits foreign ships from operating in Indonesian territory to carry passengers and/or goods between islands or ports. On the other hand, foreign ships are allowed for other activities that do not include carrying passengers and/or goods with certain conditions and approval from the government. The application of the cabotage principle based on judges' considerations in cases submitted to the State Administrative, Supreme and the Constitutional Courts has fulfilled legal certainty according to the Shipping Law. However, the protection of national Shipping must be prioritized, and the use of foreign ships should be considerably tightened unless Indonesian-flagged vessels are not insufficiently available.
{"title":"Legal Certainty of Cabotage Principle Regarding Sea Transportation in Indonesia","authors":"Y. Annalisa, Murzal Murzal, Rizka Nurliyantika","doi":"10.28946/SLREV.VOL5.ISS1.974.PP71-85","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.974.PP71-85","url":null,"abstract":"Shipping between domestic ports must be transported by ships with Indonesian flags and operated by national shipping companies, meaning the cabotage principle. The aim is to prevent and reduce dependence on foreign ships carrying out Indonesia's maritime territory. However, in regulating and implementing the cabotage principle, it is not sure that it can be applied absolutely, which can be interpreted as not reflecting legal certainty. This study aims to analyze the legal certainty of implementation of the cabotage principle in Indonesian territorial waters. This research is a normative study that uses legal, historical, interpretation and case approaches. The case and interpretation approaches are used to examine the cabotage principle concept in legislation and several relevant cases brought to Indonesian courts. The results shows that the regulation of the cabotage principle on sea transportation is found in the form of laws, presidential regulations, presidential instructions and ministerial regulations. However, in other various regulations, the cabotage principle does not apply absolutely (semi-protectionist) or inconsequently. On the one hand, this is because it prohibits foreign ships from operating in Indonesian territory to carry passengers and/or goods between islands or ports. On the other hand, foreign ships are allowed for other activities that do not include carrying passengers and/or goods with certain conditions and approval from the government. The application of the cabotage principle based on judges' considerations in cases submitted to the State Administrative, Supreme and the Constitutional Courts has fulfilled legal certainty according to the Shipping Law. However, the protection of national Shipping must be prioritized, and the use of foreign ships should be considerably tightened unless Indonesian-flagged vessels are not insufficiently available.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"85 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77215989","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 : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.826.PP115-129
Bosede Remilekun Adeuti
This paper examines contemporary issues in Office Establishment Dispute Resolution Mechanism in Nigeria. It explores strategic ways of resolving such office establishment dispute which has remained an intractable problem in Nigeria. The objective is to examine litigation challenges in settlement of this office dispute in Nigeria and other developing countries. This paper argues that adopting Alternative Dispute Resolution Mechanism in Office Establishment Dispute is not only a programmatic goal to be attained in the long term but rather an immediate obligation that is preferable to litigation in the court of law. The doctrinal research methodology will be used to examine the challenges in resolving office establishment dispute through alternative dispute resolution Mechanisms. This paper adopts an analytical and qualitative approach and builds its argument on existing literature works, which are achieved by synthesising ideas. Recommendations and suggestions are made based on research findings. This paper concludes that the era of jettisoning or sacrificing Alternative Dispute Resolution on the altar of inapplicability in resolving office establishment dispute is gone and the need to move with time with the practise which has been in existence in developed countries for decades.
{"title":"Resolving Office Establishment Dispute in Nigeria through Alternative Dispute Resolution Mechanism: An Evolving Regime","authors":"Bosede Remilekun Adeuti","doi":"10.28946/SLREV.VOL5.ISS1.826.PP115-129","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.826.PP115-129","url":null,"abstract":"This paper examines contemporary issues in Office Establishment Dispute Resolution Mechanism in Nigeria. It explores strategic ways of resolving such office establishment dispute which has remained an intractable problem in Nigeria. The objective is to examine litigation challenges in settlement of this office dispute in Nigeria and other developing countries. This paper argues that adopting Alternative Dispute Resolution Mechanism in Office Establishment Dispute is not only a programmatic goal to be attained in the long term but rather an immediate obligation that is preferable to litigation in the court of law. The doctrinal research methodology will be used to examine the challenges in resolving office establishment dispute through alternative dispute resolution Mechanisms. This paper adopts an analytical and qualitative approach and builds its argument on existing literature works, which are achieved by synthesising ideas. Recommendations and suggestions are made based on research findings. This paper concludes that the era of jettisoning or sacrificing Alternative Dispute Resolution on the altar of inapplicability in resolving office establishment dispute is gone and the need to move with time with the practise which has been in existence in developed countries for decades.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"103 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85840075","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 : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.864.PP56-70
Ro’fah Setyowati, B. Prabowo
There is a legal disharmony with the Sharia Banking Law in the regulation on alternative dispute resolution institutions. This problem arises because the regulation does not pay attention to sharia principles, as mandated by Article 55, Paragraph 3 of the Sharia Banking Law. Meanwhile, the application of sharia principles is a spiritual right of consumers which also requires legal protection. This research is intended to assess alternative dispute resolution institutions' regulations, particularly Financial Services Authority Regulation from a consumer protection perspective, particularly spiritual rights. This research is categorized as an empirical normative study, using a philosophical, historical approach and a content analysis of the Financial Services Authority Regulation. The results of this study indicate that the Financial Services Authority Regulation on Alternative Dispute Resolution Institutions has not accommodated spiritual rights in dispute resolution for the Islamic banking industry. A weak understanding of spiritual rights causes it in the context of dispute resolution. It also creates another problem in the form of a lack of attention and policies that support the protection of spiritual rights, both in regulatory and banking institutions. In the context of dispute resolution, there are general consumer rights, such as the right to get advocacy, while the application of sharia principles is a special right. Based on these findings, it is recommended that regulatory institutions, particularly the Financial Services Authority, pay adequate attention to the entire financial service industry under their respective characteristics. It is an important matter because the protection of spiritual rights supports the development of the Islamic finance industry both in Indonesia and globally.
{"title":"Sharia Principles in the Financial Services Authority Regulation on Dispute Settlement Alternatives","authors":"Ro’fah Setyowati, B. Prabowo","doi":"10.28946/SLREV.VOL5.ISS1.864.PP56-70","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.864.PP56-70","url":null,"abstract":"There is a legal disharmony with the Sharia Banking Law in the regulation on alternative dispute resolution institutions. This problem arises because the regulation does not pay attention to sharia principles, as mandated by Article 55, Paragraph 3 of the Sharia Banking Law. Meanwhile, the application of sharia principles is a spiritual right of consumers which also requires legal protection. This research is intended to assess alternative dispute resolution institutions' regulations, particularly Financial Services Authority Regulation from a consumer protection perspective, particularly spiritual rights. This research is categorized as an empirical normative study, using a philosophical, historical approach and a content analysis of the Financial Services Authority Regulation. The results of this study indicate that the Financial Services Authority Regulation on Alternative Dispute Resolution Institutions has not accommodated spiritual rights in dispute resolution for the Islamic banking industry. A weak understanding of spiritual rights causes it in the context of dispute resolution. It also creates another problem in the form of a lack of attention and policies that support the protection of spiritual rights, both in regulatory and banking institutions. In the context of dispute resolution, there are general consumer rights, such as the right to get advocacy, while the application of sharia principles is a special right. Based on these findings, it is recommended that regulatory institutions, particularly the Financial Services Authority, pay adequate attention to the entire financial service industry under their respective characteristics. It is an important matter because the protection of spiritual rights supports the development of the Islamic finance industry both in Indonesia and globally.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79547112","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 : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.977.PP101-115
Rohani Abdul Rahim, Muhammad Afiq Ahmad Tajuddin, Rovina Intung, A. Landa, Herlina Makanah
According to Sabah Forestry Enactment 1968, Yang di-Pertua Negeri Sabah is given the power to reserves forests for various purposes including commercial, protection, domestic and others. Sabah Forestry Department is entrusted with proper and efficient planning, and implementation of State forest resources management (SFM) to comply with the sustainable forest principles. It achieves to manage forest resources towards sustainable and profitable forest governance. However, Sabah forest reserves were threatened by illegal trespassing by foreign migrants to possess forest produce unlawfully and to occupy State land illegally. This article aims to expose the causes of the invasion of forest reserves by foreign migrants, the offences committed by foreign migrant activities in the forest reserves, violation of specific legislation such as the Immigration Act 1959/63 and the Forest Enactment 1968. The qualitative legal research methodology was used to understand the issues at hand, the existing applicable laws and the legal implications for such illegal activities in these forest reserves. Secondary data found in the legislation, journals, annual report, and law publication were collected, reviewed, analysed, and discussed to understand its legal implications better. Thus, efforts to expose these illegal activities by foreign migrants is essential to ensure Sabah Forest Reserves can continuously be maintained and not destroyed at the hand of illegal foreign trespassers. Employers should also be made responsible for their involvement in trafficked or smuggled illegal migrants as workers and simultaneously, conduct illegal activities to deceit the State Forestry efforts and developmental planning in Sabah.
{"title":"Foreign Migrants Trespassing in Sabah Forest Reserves: A Legal Discourse","authors":"Rohani Abdul Rahim, Muhammad Afiq Ahmad Tajuddin, Rovina Intung, A. Landa, Herlina Makanah","doi":"10.28946/SLREV.VOL5.ISS1.977.PP101-115","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.977.PP101-115","url":null,"abstract":"According to Sabah Forestry Enactment 1968, Yang di-Pertua Negeri Sabah is given the power to reserves forests for various purposes including commercial, protection, domestic and others. Sabah Forestry Department is entrusted with proper and efficient planning, and implementation of State forest resources management (SFM) to comply with the sustainable forest principles. It achieves to manage forest resources towards sustainable and profitable forest governance. However, Sabah forest reserves were threatened by illegal trespassing by foreign migrants to possess forest produce unlawfully and to occupy State land illegally. This article aims to expose the causes of the invasion of forest reserves by foreign migrants, the offences committed by foreign migrant activities in the forest reserves, violation of specific legislation such as the Immigration Act 1959/63 and the Forest Enactment 1968. The qualitative legal research methodology was used to understand the issues at hand, the existing applicable laws and the legal implications for such illegal activities in these forest reserves. Secondary data found in the legislation, journals, annual report, and law publication were collected, reviewed, analysed, and discussed to understand its legal implications better. Thus, efforts to expose these illegal activities by foreign migrants is essential to ensure Sabah Forest Reserves can continuously be maintained and not destroyed at the hand of illegal foreign trespassers. Employers should also be made responsible for their involvement in trafficked or smuggled illegal migrants as workers and simultaneously, conduct illegal activities to deceit the State Forestry efforts and developmental planning in Sabah.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"249 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80676242","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 : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.881.PP143-162
Febrian Febrian, Lusi Apriyani, Vera Novianti
In Indonesia, a crime against wildlife is still not well controlled. Several reasons are the fact that certain wildlife is still considered a threat by the community and the lack of implemented criminal sanctions. This paper compares the application of sanctions to perpetrators of wildlife crimes between Indonesia and America. Based on the Indonesian Law, Article 40(2) of the Law on Conservation of Living Natural Resources and their Ecosystems, a person who commits a crime against individual wild animals can be imprisoned for a maximum of five years and a maximum fine of one hundred million rupiahs. Meanwhile, the United States Law, the Endangered Species Act (ESA), charges wildlife criminals with criminal and civil penalties. In § 1540(a)(1) it provides that anyone who takes, imports, exports, transports or sells endangered species can be fined not more than $ 25,000. If the species is threatened in the group, the offender can be subject to a sentence of not more than $ 12,000. Also, additional criminal sanctions were imposed to revoke federal licenses, lease permits and hunting permits. This study aims to analyse criminal sanctions' enforcement in criminal cases against protected animals in courts in Indonesia and the United States to find best practices using normative legal research methods. The results show that the criminal sanctions against wildlife crimes in Indonesia have never reached the maximum sentence so that it is not sufficient to provide a deterrent effect for the perpetrators. Unlike in America, the imprisonment sanction for criminal sanctions for protected animals is still relatively weak, but fines and civil sanctions can be maximally applied.
{"title":"Rethinking Indonesian Legislation on Wildlife Protection: A Comparison between Indonesia and the United States","authors":"Febrian Febrian, Lusi Apriyani, Vera Novianti","doi":"10.28946/SLREV.VOL5.ISS1.881.PP143-162","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.881.PP143-162","url":null,"abstract":"In Indonesia, a crime against wildlife is still not well controlled. Several reasons are the fact that certain wildlife is still considered a threat by the community and the lack of implemented criminal sanctions. This paper compares the application of sanctions to perpetrators of wildlife crimes between Indonesia and America. Based on the Indonesian Law, Article 40(2) of the Law on Conservation of Living Natural Resources and their Ecosystems, a person who commits a crime against individual wild animals can be imprisoned for a maximum of five years and a maximum fine of one hundred million rupiahs. Meanwhile, the United States Law, the Endangered Species Act (ESA), charges wildlife criminals with criminal and civil penalties. In § 1540(a)(1) it provides that anyone who takes, imports, exports, transports or sells endangered species can be fined not more than $ 25,000. If the species is threatened in the group, the offender can be subject to a sentence of not more than $ 12,000. Also, additional criminal sanctions were imposed to revoke federal licenses, lease permits and hunting permits. This study aims to analyse criminal sanctions' enforcement in criminal cases against protected animals in courts in Indonesia and the United States to find best practices using normative legal research methods. The results show that the criminal sanctions against wildlife crimes in Indonesia have never reached the maximum sentence so that it is not sufficient to provide a deterrent effect for the perpetrators. Unlike in America, the imprisonment sanction for criminal sanctions for protected animals is still relatively weak, but fines and civil sanctions can be maximally applied.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"30 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83091629","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 : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.673.PP86-100
Aries Harianto
The Circular Letter of the Minister of Manpower No. M/6/HI.00.01/V/2020 concerning the Implementation of Religious Holiday Allowance Payment (THR) of 2020 in Companies during Covid-19 Pandemic is a regulation expected to complete THR payment problems in this Pandemic situation. However, normatively, this regulation raises new legal issues. This regulation's provisions contradict the principle of legal certainty because it contradicts the laws and regulations above it. Under the juridical normative type of research, the results of this research found the emergence of legal consequences due to industrial relations disputes for employment relations actors if the agreement on THR Payment is not achieved. This research has also found that the Minister Circular Letter on THR Payment basically contradicted the principle of legal certainty because the status does not belong to the statutory regulations, meaning that it has no force to be applied as statutory regulations do. Based on the Statutory regulation, the minister Circular Letter's legal status only applies to internal institutions which issue and belongs to technical and administrative arrangements. Thus, legal action as research result recommended to the government is revoking the minister's circular letter on THR Payment.
{"title":"Does Religious Holiday Allowance Policy during Covid-19 Provide Legal Certainty?","authors":"Aries Harianto","doi":"10.28946/SLREV.VOL5.ISS1.673.PP86-100","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.673.PP86-100","url":null,"abstract":"The Circular Letter of the Minister of Manpower No. M/6/HI.00.01/V/2020 concerning the Implementation of Religious Holiday Allowance Payment (THR) of 2020 in Companies during Covid-19 Pandemic is a regulation expected to complete THR payment problems in this Pandemic situation. However, normatively, this regulation raises new legal issues. This regulation's provisions contradict the principle of legal certainty because it contradicts the laws and regulations above it. Under the juridical normative type of research, the results of this research found the emergence of legal consequences due to industrial relations disputes for employment relations actors if the agreement on THR Payment is not achieved. This research has also found that the Minister Circular Letter on THR Payment basically contradicted the principle of legal certainty because the status does not belong to the statutory regulations, meaning that it has no force to be applied as statutory regulations do. Based on the Statutory regulation, the minister Circular Letter's legal status only applies to internal institutions which issue and belongs to technical and administrative arrangements. Thus, legal action as research result recommended to the government is revoking the minister's circular letter on THR Payment.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"140 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89027335","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 : 2021-01-31DOI: 10.28946/SLREV.VOL5.ISS1.603.PP1-13
I. Danjuma, Karatu Afabwaje Joel
International law or treaty binds a state where such state signed, ratified acceded or domesticated same. In a monist State, ratification alone suffices for the international law or treaty to become binding whereas, in a dualist State, domestication as a condition must have complied. It is because of the peculiarities within various nations' legal systems (Monist or Dualist system). In 1989, The United Nations Convention on the Rights of the Child (UNCRC), an international human rights instrument came into force. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, only about 24 States have enacted the law for onward enforcement. Nigeria is a nation which became independent in the year 1960 comprising now of 36 states and Abuja as its Federal Capital Territory all under the Federal Government. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, many States have enacted the law for onward enforcement. However, few states are yet to comply and raise a question as to whether the said CRC has a binding force in all the States of the Federation. This study aims to examine the extent of how the UNCRC and CRA are being enforced in Nigeria. This study's research methodology is purely doctrinal, where library materials such as books, articles from journals, and online articles have been carefully selected and analyzed for this research. This paper recommends establishing a global agency or organ that should be saddled with the responsibility of ensuring full compliance and enforcement of international laws or treaties.
{"title":"The Legal Conundrum in the Implementation of the Convention on the Rights of the Child in Nigeria","authors":"I. Danjuma, Karatu Afabwaje Joel","doi":"10.28946/SLREV.VOL5.ISS1.603.PP1-13","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.603.PP1-13","url":null,"abstract":"International law or treaty binds a state where such state signed, ratified acceded or domesticated same. In a monist State, ratification alone suffices for the international law or treaty to become binding whereas, in a dualist State, domestication as a condition must have complied. It is because of the peculiarities within various nations' legal systems (Monist or Dualist system). In 1989, The United Nations Convention on the Rights of the Child (UNCRC), an international human rights instrument came into force. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, only about 24 States have enacted the law for onward enforcement. Nigeria is a nation which became independent in the year 1960 comprising now of 36 states and Abuja as its Federal Capital Territory all under the Federal Government. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, many States have enacted the law for onward enforcement. However, few states are yet to comply and raise a question as to whether the said CRC has a binding force in all the States of the Federation. This study aims to examine the extent of how the UNCRC and CRA are being enforced in Nigeria. This study's research methodology is purely doctrinal, where library materials such as books, articles from journals, and online articles have been carefully selected and analyzed for this research. This paper recommends establishing a global agency or organ that should be saddled with the responsibility of ensuring full compliance and enforcement of international laws or treaties.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89574471","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 : 2021-01-28DOI: 10.28946/SLREV.VOL5.ISS1.877.PP42-55
S. Soehartono, Kukuh Tejomurti, Arsyad Aldyan, Rachma Indriyani
This study aimed to analyse a shifting paradigm of Dominus Litis (judge activeness) in the Indonesian state administrative justice. This principle emphasises that judges expand the paradigm that judges are not limited to being used in processes regulated in law. However, judges need to actively develop the paradigm to make legal discoveries oriented towards substantive justice and expand the paradigm from merely resolving disputes positivistically to resolving conflicts with paradigms. Legal realism and sociological jurisprudence to create substantive justice. This paper uses the normative research method, with a statutory approach and case approach by analysing two decisions of state administrative court judges. The result showed that Dominus Litis in the dispute's accomplishment is not limited to the implementation of juridical-legal positivism factors, but on how judges use their mindset to provide ideal decisions and conduct legal reasoning use socio-legal and socio-cultural paradigms. The development of demands for justice has also experienced a paradigm shift of justice. It requires the principle of an active judge who always follows developments in public policy, such as the principle of sustainable development related to environmental and natural resource issues, and finding the legal material truth.
{"title":"The Establishing Paradigm of Dominus Litis Principle in Indonesian Administrative Justice","authors":"S. Soehartono, Kukuh Tejomurti, Arsyad Aldyan, Rachma Indriyani","doi":"10.28946/SLREV.VOL5.ISS1.877.PP42-55","DOIUrl":"https://doi.org/10.28946/SLREV.VOL5.ISS1.877.PP42-55","url":null,"abstract":"This study aimed to analyse a shifting paradigm of Dominus Litis (judge activeness) in the Indonesian state administrative justice. This principle emphasises that judges expand the paradigm that judges are not limited to being used in processes regulated in law. However, judges need to actively develop the paradigm to make legal discoveries oriented towards substantive justice and expand the paradigm from merely resolving disputes positivistically to resolving conflicts with paradigms. Legal realism and sociological jurisprudence to create substantive justice. This paper uses the normative research method, with a statutory approach and case approach by analysing two decisions of state administrative court judges. The result showed that Dominus Litis in the dispute's accomplishment is not limited to the implementation of juridical-legal positivism factors, but on how judges use their mindset to provide ideal decisions and conduct legal reasoning use socio-legal and socio-cultural paradigms. The development of demands for justice has also experienced a paradigm shift of justice. It requires the principle of an active judge who always follows developments in public policy, such as the principle of sustainable development related to environmental and natural resource issues, and finding the legal material truth.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"75 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77045478","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 : 2020-01-31DOI: 10.28946/SLREV.VOL4.ISS2.404.PP52-61
T. Mansur, Y. Yunita, M. Adli, S. Sulaiman
Seclusion (khalwat) is the activity conducted in a quiet place between two individuals of different sex who are not mahram (blood relative) without the legitimate marriage bond and the willingness from both parties, which leads to adultery. Fine is one of the customary penalties given to the perpetrators of khalwat. In practice, implemented of fines between one region and another is different. The study aims to identify the types of adat fines charged to khalwat perpetrators and the effectiveness of implementation on the settlement customary fines in Banda Aceh. It used a juridical-empirical research method. The data used, in addition to primary and secondary legal material, also used an in-depth interview with respondents. The data analyzed using a qualitative descriptive approach. This research conducted in Banda Aceh district. The research results show that the kind of customary fines given to khalwat perpetrators was different. There are even some cases begun to shift, and some considered that being married because of khalwat was considered one of the customary fines. Customary fines are effective in reducing offense of khalwat. However, there are concerns if the decision of the customary fines does not get optimal support from law enforcement officials. Expected, customary official affirmed kind of customary fine given to khalwat perpetrators. The difference subtle, need to consider the aspect of justice, the ability, and effective whereabouts of fines to reduction offense of khalwat.
{"title":"The Effectiveness of the Implementation of Customary Fines in Settlement of Seclusion Cases in Banda Aceh","authors":"T. Mansur, Y. Yunita, M. Adli, S. Sulaiman","doi":"10.28946/SLREV.VOL4.ISS2.404.PP52-61","DOIUrl":"https://doi.org/10.28946/SLREV.VOL4.ISS2.404.PP52-61","url":null,"abstract":"Seclusion (khalwat) is the activity conducted in a quiet place between two individuals of different sex who are not mahram (blood relative) without the legitimate marriage bond and the willingness from both parties, which leads to adultery. Fine is one of the customary penalties given to the perpetrators of khalwat. In practice, implemented of fines between one region and another is different. The study aims to identify the types of adat fines charged to khalwat perpetrators and the effectiveness of implementation on the settlement customary fines in Banda Aceh. It used a juridical-empirical research method. The data used, in addition to primary and secondary legal material, also used an in-depth interview with respondents. The data analyzed using a qualitative descriptive approach. This research conducted in Banda Aceh district. The research results show that the kind of customary fines given to khalwat perpetrators was different. There are even some cases begun to shift, and some considered that being married because of khalwat was considered one of the customary fines. Customary fines are effective in reducing offense of khalwat. However, there are concerns if the decision of the customary fines does not get optimal support from law enforcement officials. Expected, customary official affirmed kind of customary fine given to khalwat perpetrators. The difference subtle, need to consider the aspect of justice, the ability, and effective whereabouts of fines to reduction offense of khalwat.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"60 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85739101","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 : 2020-01-31DOI: 10.28946/SLREV.VOL4.ISS2.297.PP62-78
Henny Yuningsih, I. N. Nurjaya, P. Djatmika, Masruchin Ruba’i
The rate of sexual violence against children in Indonesia is very alarming. Perpetrators of sexual violence against children are usually adults close to the victim, including family members and neighbors. Sexual violence is a violation of human rights. Sexual violence deprives the victim of security and protection, the right to prosper physically and spiritually, the right to be free from torture or treatment that demean human dignity, and the right to live. Chemical castration stipulated in Law No. 17 of 2016 is a form of punishment that is not under criminal law policy in Indonesia, which is based on Pancasila and the 1945 Constitution. Chemical castration formulated in Article 81 Paragraph (7) is not following the values of Pancasila, especially the first principle, namely belief in One and Only God, and the second principle, just and civilized humanity. Substantially, the castration penalty causes an individual to lose the right to continue the lineage and fulfill basic needs as guaranteed in Article 28B paragraph (1) of the 1945 Constitution. The same thing is stated in Article 10, paragraph (1) of Law No. 39 of 1999 concerning Human Rights.
{"title":"Philosophical Foundation of Chemical Castration for Offenders of Sexual Violence Against Children","authors":"Henny Yuningsih, I. N. Nurjaya, P. Djatmika, Masruchin Ruba’i","doi":"10.28946/SLREV.VOL4.ISS2.297.PP62-78","DOIUrl":"https://doi.org/10.28946/SLREV.VOL4.ISS2.297.PP62-78","url":null,"abstract":"The rate of sexual violence against children in Indonesia is very alarming. Perpetrators of sexual violence against children are usually adults close to the victim, including family members and neighbors. Sexual violence is a violation of human rights. Sexual violence deprives the victim of security and protection, the right to prosper physically and spiritually, the right to be free from torture or treatment that demean human dignity, and the right to live. Chemical castration stipulated in Law No. 17 of 2016 is a form of punishment that is not under criminal law policy in Indonesia, which is based on Pancasila and the 1945 Constitution. Chemical castration formulated in Article 81 Paragraph (7) is not following the values of Pancasila, especially the first principle, namely belief in One and Only God, and the second principle, just and civilized humanity. Substantially, the castration penalty causes an individual to lose the right to continue the lineage and fulfill basic needs as guaranteed in Article 28B paragraph (1) of the 1945 Constitution. The same thing is stated in Article 10, paragraph (1) of Law No. 39 of 1999 concerning Human Rights.","PeriodicalId":32073,"journal":{"name":"Sriwijaya Law Review","volume":"52 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75964083","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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