Pub Date : 2024-02-22DOI: 10.19184/ejlh.v10i3.43733
Triana Dewi Seroja, David Tan, Winda Fitri, Shelvi Rusdiana
A lot of major equity markets abroad have allowed the listing of the Dual-Class Share Structure (DCSS) corporations. DCSS is an agreement in which two types of shares are issued by the very same firm, with one type of share conferring greater power compared to the other. The Indonesian Stock Exchange only allows for limited access for DCSS technology-related corporations to list on its Mainboard. To remain attractive as Southeast Asia's top financial centre, Indonesia needs to alter its securities regulations while making its listing market adaptable to meet the needs of various enterprises. This research aims to analyse and elaborate on permitting DCSS corporations to go public and devise suitable governance safeguards to guarantee the highest possible standards of corporate governance are upheld. This research explores the legal certainty and applicability of DCSS in the Indonesian equity market and abroad, using a qualitative approach and thematic analysis of secondary data. The major finding of this research is the acceptance of DCSS adds to issues with abuse of power by the controlling shareholders, which was outweighed by their cash flow rights. While those in favour of DCSS argue that the existing shareholders' main reason for choosing a DCSS arrangement is to preserve company control. Most major exchanges in the world have taken action to accommodate DCSS going public, like those in the USA, Hong Kong, Singapore, and China. Considering the magnitude of the Asian market, Indonesia can emulate the accomplishments of other exchanges too. A series of recommendations are provided to guarantee the highest standards of corporate governance can be upheld, such as: permitting DCSS for new entrants and innovative businesses, regulating the ownership of enhanced voting shares, and setting out sunset provisions for DCSS arrangement.
{"title":"Dual-Class Share Structure in the Indonesian Equity Market","authors":"Triana Dewi Seroja, David Tan, Winda Fitri, Shelvi Rusdiana","doi":"10.19184/ejlh.v10i3.43733","DOIUrl":"https://doi.org/10.19184/ejlh.v10i3.43733","url":null,"abstract":"A lot of major equity markets abroad have allowed the listing of the Dual-Class Share Structure (DCSS) corporations. DCSS is an agreement in which two types of shares are issued by the very same firm, with one type of share conferring greater power compared to the other. The Indonesian Stock Exchange only allows for limited access for DCSS technology-related corporations to list on its Mainboard. To remain attractive as Southeast Asia's top financial centre, Indonesia needs to alter its securities regulations while making its listing market adaptable to meet the needs of various enterprises. This research aims to analyse and elaborate on permitting DCSS corporations to go public and devise suitable governance safeguards to guarantee the highest possible standards of corporate governance are upheld. This research explores the legal certainty and applicability of DCSS in the Indonesian equity market and abroad, using a qualitative approach and thematic analysis of secondary data. The major finding of this research is the acceptance of DCSS adds to issues with abuse of power by the controlling shareholders, which was outweighed by their cash flow rights. While those in favour of DCSS argue that the existing shareholders' main reason for choosing a DCSS arrangement is to preserve company control. Most major exchanges in the world have taken action to accommodate DCSS going public, like those in the USA, Hong Kong, Singapore, and China. Considering the magnitude of the Asian market, Indonesia can emulate the accomplishments of other exchanges too. A series of recommendations are provided to guarantee the highest standards of corporate governance can be upheld, such as: permitting DCSS for new entrants and innovative businesses, regulating the ownership of enhanced voting shares, and setting out sunset provisions for DCSS arrangement.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":"17 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140439068","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 : 2024-02-09DOI: 10.19184/ejlh.v10i3.43449
Y. Putro, Muhammad Insan Tarigan, Haekal Al Asyari
The use of Artificial Intelligence in the military is like two sides of a coin. It can provide convenience and aid in military operations but has the potential to hinder military operations. Dangerous and potentially catastrophic for humanity will be inevitable as no restrictions on its use. The United States, China, Australia, Japan, and India are examples of nations whose militaries have developed artificial intelligence technology. Geographically, Southeast Asia, which is located in the middle of these nations, will experience a significant impact due to its tight maritime borders if there is no international consensus on the military application of artificial intelligence technology. An autonomous or autonomous system to operate this technology will reduce the amount of human control and allow it to operate without any human intervention. It will be a threat to the application of the fundamental principles of international humanitarian law, such as the distinction principle, and proportionality principle. Where these principles are tightly intertwined with human command and control in making decisions regarding the execution of attacks. The article employs normative legal methodology. Furthermore, this paper endeavours to assess the pertinence of principles in international humanitarian law during the era of the artificial intelligence arms race. It also delves into the contribution of ASEAN in upholding stability, peace, and security in the Southeast Asia region, thereby reinforcing the importance of this research. This research emphasises the importance of aligning the progress of artificial intelligence in military contexts with core principles of international humanitarian law. It underscores the need for ASEAN to safeguard regional peace and security by establishing a novel regulatory framework that outlines restrictions on the development and deployment of artificial intelligence for military objectives.
{"title":"Artificial Intelligence in Indo-Pacific","authors":"Y. Putro, Muhammad Insan Tarigan, Haekal Al Asyari","doi":"10.19184/ejlh.v10i3.43449","DOIUrl":"https://doi.org/10.19184/ejlh.v10i3.43449","url":null,"abstract":"The use of Artificial Intelligence in the military is like two sides of a coin. It can provide convenience and aid in military operations but has the potential to hinder military operations. Dangerous and potentially catastrophic for humanity will be inevitable as no restrictions on its use. The United States, China, Australia, Japan, and India are examples of nations whose militaries have developed artificial intelligence technology. Geographically, Southeast Asia, which is located in the middle of these nations, will experience a significant impact due to its tight maritime borders if there is no international consensus on the military application of artificial intelligence technology. An autonomous or autonomous system to operate this technology will reduce the amount of human control and allow it to operate without any human intervention. It will be a threat to the application of the fundamental principles of international humanitarian law, such as the distinction principle, and proportionality principle. Where these principles are tightly intertwined with human command and control in making decisions regarding the execution of attacks. The article employs normative legal methodology. Furthermore, this paper endeavours to assess the pertinence of principles in international humanitarian law during the era of the artificial intelligence arms race. It also delves into the contribution of ASEAN in upholding stability, peace, and security in the Southeast Asia region, thereby reinforcing the importance of this research. This research emphasises the importance of aligning the progress of artificial intelligence in military contexts with core principles of international humanitarian law. It underscores the need for ASEAN to safeguard regional peace and security by establishing a novel regulatory framework that outlines restrictions on the development and deployment of artificial intelligence for military objectives.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":"163 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140459648","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 : 2024-02-07DOI: 10.19184/ejlh.v10i3.43325
Kadek Agus Sudiarawan, Nico Dharmawan, Alia Yofira Karunian, I. K. Dananjaya, Kadek Indira Lokahita
The problem of outsourcing workers extends to the tourism industry. The unique challenge of 'seasonality' makes it more difficult to protect the outsourcing workers' legal rights in the said sector. The research examines the outsourcing regulation in Indonesia by referring to the Job Creation Law, by questioning whether the existing regulations provide prominent legal protection for outsourcing workers, especially in tourism sectors, and how the future law allows for improved protection. The research method used is normative legal research with statutory and legal conceptual approaches. The results of the study show that the amendment of the Manpower Law incorporated into the Job Creation Law and its implementing legal instruments significantly changed outsourcing regulation. As the Job Creation Law has abolished Article 64 of the Manpower Law, the scheme established by the Constitutional Court to prevent companies from exploiting workers in their decisions has become vague in the Job Creation Law. Following global practices, the country can implement a flexible workers policy while simultaneously protecting their rights which Indonesia must adopt.
{"title":"The Indonesian Outsourcing Workers' Rights in the Tourism Business Sector","authors":"Kadek Agus Sudiarawan, Nico Dharmawan, Alia Yofira Karunian, I. K. Dananjaya, Kadek Indira Lokahita","doi":"10.19184/ejlh.v10i3.43325","DOIUrl":"https://doi.org/10.19184/ejlh.v10i3.43325","url":null,"abstract":"The problem of outsourcing workers extends to the tourism industry. The unique challenge of 'seasonality' makes it more difficult to protect the outsourcing workers' legal rights in the said sector. The research examines the outsourcing regulation in Indonesia by referring to the Job Creation Law, by questioning whether the existing regulations provide prominent legal protection for outsourcing workers, especially in tourism sectors, and how the future law allows for improved protection. The research method used is normative legal research with statutory and legal conceptual approaches. The results of the study show that the amendment of the Manpower Law incorporated into the Job Creation Law and its implementing legal instruments significantly changed outsourcing regulation. As the Job Creation Law has abolished Article 64 of the Manpower Law, the scheme established by the Constitutional Court to prevent companies from exploiting workers in their decisions has become vague in the Job Creation Law. Following global practices, the country can implement a flexible workers policy while simultaneously protecting their rights which Indonesia must adopt.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":"202 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140460728","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 : 2024-02-07DOI: 10.19184/ejlh.v10i3.43726
Rini Maryam, Sulistyowati Irianto
The rising global divorce rate is reshaping the landscape of family dispute resolution, moving away from the adversarial or litigation system toward an alternative dispute resolution known as mediation. This global trend is also observed in Indonesia where the Supreme Court has mandated the use of mediation in civil cases. "Everybody wins, nobody loses" as the primary slogan of mediation emphasizes a win-win outcome for all parties involved, avoiding any losers. However, assessing its efficacy in handling divorce cases in Indonesia becomes crucial. This is mainly because the settlement rate has been discovered to be low in Indonesia since the mandatory implementation of court-annexed mediation for almost two decades compared to other countries such as Australia and the United States. In both countries, settlement is not only based on agreements but also on the process that satisfies the parties. Therefore, this study aims to examine the conceptual issues underlying the low effectiveness of divorce mediation by questioning agreements as a measure of divorce mediation effectiveness. This study uses the sociolegal framework to critique the Supreme Court Regulation 1/2016 regarding Mediation in court and its dynamics in divorce cases. Moreover, courtroom study is applied to observe the mediation process. The results showed that the success of mediation revolves around the number of agreements reached by the parties and the process did not focus on the characteristics of divorce cases, thereby considered not suitable for all cases. Furthermore, the court-annexed mediation regulation creates ambiguity between the use of marital mediation to reconcile the parties and divorce mediation to proceed post-divorce agreement or both.
{"title":"Exploring Efficacy","authors":"Rini Maryam, Sulistyowati Irianto","doi":"10.19184/ejlh.v10i3.43726","DOIUrl":"https://doi.org/10.19184/ejlh.v10i3.43726","url":null,"abstract":"The rising global divorce rate is reshaping the landscape of family dispute resolution, moving away from the adversarial or litigation system toward an alternative dispute resolution known as mediation. This global trend is also observed in Indonesia where the Supreme Court has mandated the use of mediation in civil cases. \"Everybody wins, nobody loses\" as the primary slogan of mediation emphasizes a win-win outcome for all parties involved, avoiding any losers. However, assessing its efficacy in handling divorce cases in Indonesia becomes crucial. This is mainly because the settlement rate has been discovered to be low in Indonesia since the mandatory implementation of court-annexed mediation for almost two decades compared to other countries such as Australia and the United States. In both countries, settlement is not only based on agreements but also on the process that satisfies the parties. Therefore, this study aims to examine the conceptual issues underlying the low effectiveness of divorce mediation by questioning agreements as a measure of divorce mediation effectiveness. This study uses the sociolegal framework to critique the Supreme Court Regulation 1/2016 regarding Mediation in court and its dynamics in divorce cases. Moreover, courtroom study is applied to observe the mediation process. The results showed that the success of mediation revolves around the number of agreements reached by the parties and the process did not focus on the characteristics of divorce cases, thereby considered not suitable for all cases. Furthermore, the court-annexed mediation regulation creates ambiguity between the use of marital mediation to reconcile the parties and divorce mediation to proceed post-divorce agreement or both.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":"152 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140460541","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 : 2023-05-31DOI: 10.19184/ejlh.v10i1.37920
D. Heriyanto, S. Sefriani, Fezer Tamas
The non-refoulement principle requires each country to consider refugees and asylum seekers in their country of origin if they are subject to persecution and threaten their lives. As a geographically strategic country, Indonesia has been a significant crossroad for international refugees and asylum seekers often consider Indonesia their temporary destination. Moreover, the complex situation of international refugees has encouraged to reinterpret of the principle of non-refoulement into various national measures and domestic policies, given that Indonesia is deemed a transit country for refugees and has not ratified the 1951 Convention on the Status of Refugees. This paper aims to analyse the concept of refugee protection under international law, particularly the non-refoulement principle and investigate the application of the non-refoulement principle in Indonesia. This study employed normative and empirical legal research with statutory, conceptual, and comparative approaches. This study confirms that the non-refoulement principle is part of jus cogens norms in international law but does not fit in its application. Indonesia has inconsistency in upholding the non-refoulement principle into the binding normative rules. Refugees have received far less attention from the Indonesian government due to insufficient infrastructure and financial allocation. Moreover, the existing executive regulations do not provide effective enforcement since these regulations have a lower position in the hierarchy and cannot have deterrent sanctions. Hence, ratification of the 1951 Convention is urgently needed by Indonesia to guarantee the protection of refugees within its jurisdiction. At the regional scope, Indonesia can encourage ASEAN countries to adopt good practices in the European Union to set sharing quotas to ensure that not most refugees escape to Indonesia.
{"title":"No Choice but Welcoming Refugees: The Non-Refoulement Principle as Customary International Law in Indonesia","authors":"D. Heriyanto, S. Sefriani, Fezer Tamas","doi":"10.19184/ejlh.v10i1.37920","DOIUrl":"https://doi.org/10.19184/ejlh.v10i1.37920","url":null,"abstract":"The non-refoulement principle requires each country to consider refugees and asylum seekers in their country of origin if they are subject to persecution and threaten their lives. As a geographically strategic country, Indonesia has been a significant crossroad for international refugees and asylum seekers often consider Indonesia their temporary destination. Moreover, the complex situation of international refugees has encouraged to reinterpret of the principle of non-refoulement into various national measures and domestic policies, given that Indonesia is deemed a transit country for refugees and has not ratified the 1951 Convention on the Status of Refugees. This paper aims to analyse the concept of refugee protection under international law, particularly the non-refoulement principle and investigate the application of the non-refoulement principle in Indonesia. This study employed normative and empirical legal research with statutory, conceptual, and comparative approaches. This study confirms that the non-refoulement principle is part of jus cogens norms in international law but does not fit in its application. Indonesia has inconsistency in upholding the non-refoulement principle into the binding normative rules. Refugees have received far less attention from the Indonesian government due to insufficient infrastructure and financial allocation. Moreover, the existing executive regulations do not provide effective enforcement since these regulations have a lower position in the hierarchy and cannot have deterrent sanctions. Hence, ratification of the 1951 Convention is urgently needed by Indonesia to guarantee the protection of refugees within its jurisdiction. At the regional scope, Indonesia can encourage ASEAN countries to adopt good practices in the European Union to set sharing quotas to ensure that not most refugees escape to Indonesia.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47512856","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 : 2023-05-29DOI: 10.19184/ejlh.v10i1.38435
Muhammad Bahrul Ulum, Aristya Dinata
In Indonesia, promoting human rights is a long battle run. Human rights were just formally recognised when Suharto's authoritarian regime ended in 1998, but these rights have experienced a rise and fall throughout the Reformasi. Indonesia successfully amended the 1945 Constitution with more human rights provisions and enacted Human Rights Law 39/1999. However, this country still faces the challenges of ensuring that human rights are promoted with the state’s obligation to respect, protect and fulfil amidst the debates on institutional reforms, universalism and relativism, as well as the limited powers of the national human rights institutions. Along with efforts to ensure that democracy and human rights can coexist, democratisation in Indonesia is also inextricably linked to advancing human rights. After two decades of Indonesia's reform, human rights and democracy have become vital cornerstones, but they have experienced serious challenges in their promotion. From the Indonesian context, these discourses can relate to those discourses in other Global South countries, like India, that this edition will elaborate on due to their relatively similar and unique pathways with arduous tasks in managing domestic affairs. Indonesia can represent critical, which is more likely underrepresented discourses with robust arguments on various social, economic, political and cultural situations in the Southern Hemisphere, from which these debates endure and are usually more centred on the West and, to some extent, the Global North. These discourses from the Global South countries can provide a frequently unheard perspective to current discussions on human rights. By navigating human rights in Indonesia and beyond, these discourses highlight how the new justification of human rights can contribute to emancipatory initiatives.
{"title":"Navigating Human Rights in Indonesia and Beyond","authors":"Muhammad Bahrul Ulum, Aristya Dinata","doi":"10.19184/ejlh.v10i1.38435","DOIUrl":"https://doi.org/10.19184/ejlh.v10i1.38435","url":null,"abstract":"In Indonesia, promoting human rights is a long battle run. Human rights were just formally recognised when Suharto's authoritarian regime ended in 1998, but these rights have experienced a rise and fall throughout the Reformasi. Indonesia successfully amended the 1945 Constitution with more human rights provisions and enacted Human Rights Law 39/1999. However, this country still faces the challenges of ensuring that human rights are promoted with the state’s obligation to respect, protect and fulfil amidst the debates on institutional reforms, universalism and relativism, as well as the limited powers of the national human rights institutions. Along with efforts to ensure that democracy and human rights can coexist, democratisation in Indonesia is also inextricably linked to advancing human rights. After two decades of Indonesia's reform, human rights and democracy have become vital cornerstones, but they have experienced serious challenges in their promotion. From the Indonesian context, these discourses can relate to those discourses in other Global South countries, like India, that this edition will elaborate on due to their relatively similar and unique pathways with arduous tasks in managing domestic affairs. Indonesia can represent critical, which is more likely underrepresented discourses with robust arguments on various social, economic, political and cultural situations in the Southern Hemisphere, from which these debates endure and are usually more centred on the West and, to some extent, the Global North. These discourses from the Global South countries can provide a frequently unheard perspective to current discussions on human rights. By navigating human rights in Indonesia and beyond, these discourses highlight how the new justification of human rights can contribute to emancipatory initiatives.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47304682","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 : 2023-05-28DOI: 10.19184/ejlh.v10i1.36685
M. Indra, Geofani Milthree Saragih, Tito Handoko
In Indonesia, the Constitutional Court has the power to decide the dispute over the result of the national election, including that of the regional head election. In practice, the Constitutional Court exercises power with the so-called pseudo-judicial review for the result of the regional election dispute. This study aims to analyse the rationale of the Constitutional Court to implement a pseudo-judicial review over the regional head election result, given the judicial activism that also is limited to checks and balances. It also links the theoretical basis for rule-breaking and judicial activism by the Constitutional Court, the transition of the Constitutional Court's power in deciding regional election disputes from temporary to permanent, as well as further analysis of why the Constitutional Court needs to file a lawsuit for review. This study used legal research that examined legal principles and regulations with a theoretical approach analysed qualitatively. The results of this study indicate that pseudo-judicial review affirms the legal breakthrough beyond ordinary decisions as this was made on the ground of the public interest. While the Constitutional Court is essential in maintaining and overseeing democracy in Indonesia, the rationale of the Constitutional Court under the public interest is justified as it is constitutionally correct that has led to judicial activism. A pseudo-judicial review is for substantial justice and can influence time efficiency.
{"title":"Pseudo-judicial Review for the Dispute over the Result of the Regional Head Election in Indonesia","authors":"M. Indra, Geofani Milthree Saragih, Tito Handoko","doi":"10.19184/ejlh.v10i1.36685","DOIUrl":"https://doi.org/10.19184/ejlh.v10i1.36685","url":null,"abstract":"In Indonesia, the Constitutional Court has the power to decide the dispute over the result of the national election, including that of the regional head election. In practice, the Constitutional Court exercises power with the so-called pseudo-judicial review for the result of the regional election dispute. This study aims to analyse the rationale of the Constitutional Court to implement a pseudo-judicial review over the regional head election result, given the judicial activism that also is limited to checks and balances. It also links the theoretical basis for rule-breaking and judicial activism by the Constitutional Court, the transition of the Constitutional Court's power in deciding regional election disputes from temporary to permanent, as well as further analysis of why the Constitutional Court needs to file a lawsuit for review. This study used legal research that examined legal principles and regulations with a theoretical approach analysed qualitatively. The results of this study indicate that pseudo-judicial review affirms the legal breakthrough beyond ordinary decisions as this was made on the ground of the public interest. While the Constitutional Court is essential in maintaining and overseeing democracy in Indonesia, the rationale of the Constitutional Court under the public interest is justified as it is constitutionally correct that has led to judicial activism. A pseudo-judicial review is for substantial justice and can influence time efficiency.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46590344","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 : 2023-05-10DOI: 10.19184/ejlh.v10i1.37495
Y. A. T. Ohoiwutun, Evoryo Carel Prabhata, Pyali Chatterjee, Hanita Kosher, A. Ben-Arieh, Yael Hendelsman
Various attempts to accommodate a child's opinion in courts have proven successful, and this participation has been increasingly regarded as integral to children's rights. However, the issue remains problematic, particularly in the Global South countries like Indonesia. This paper examines the legal and regulatory framework of protecting children in Indonesia to comply with children's right to opinion and how this right is implemented. Then, it demonstrates the significant role of forensic science in complementing legal inquiry to consider a child's opinion in court. Using policy-oriented study and doctrinal research with qualitative analysis and, to some extent, a comparative perspective, this paper elaborates on Indonesia's experience in protecting children's right to opinion with legislation in India, particularly dealing with child sexual offences. This study shows that Indonesia's legal and regulatory framework of children protection had not specified to elucidate children's right to an opinion, particularly in the Child Protection Law, the primary legal basis for children protection. Also, Indonesia is yet to have a robust and consistent practice of human rights-based instruments considered in the court, indicated by a lack of comprehensive understanding in law enforcement to implement this right. While the interpretation in law enforcement is essential to be optimised toward child-oriented resolution, taking the child's opinion in court promotes human rights practice in Indonesia. Compared to adults, children are complex, particularly in a case of a child victim of rape-related pregnancy. The forensic approach can be an alternative by involving forensic experts in courts to consider a child's psychology and physical condition.
{"title":"Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts","authors":"Y. A. T. Ohoiwutun, Evoryo Carel Prabhata, Pyali Chatterjee, Hanita Kosher, A. Ben-Arieh, Yael Hendelsman","doi":"10.19184/ejlh.v10i1.37495","DOIUrl":"https://doi.org/10.19184/ejlh.v10i1.37495","url":null,"abstract":"Various attempts to accommodate a child's opinion in courts have proven successful, and this participation has been increasingly regarded as integral to children's rights. However, the issue remains problematic, particularly in the Global South countries like Indonesia. This paper examines the legal and regulatory framework of protecting children in Indonesia to comply with children's right to opinion and how this right is implemented. Then, it demonstrates the significant role of forensic science in complementing legal inquiry to consider a child's opinion in court. Using policy-oriented study and doctrinal research with qualitative analysis and, to some extent, a comparative perspective, this paper elaborates on Indonesia's experience in protecting children's right to opinion with legislation in India, particularly dealing with child sexual offences. This study shows that Indonesia's legal and regulatory framework of children protection had not specified to elucidate children's right to an opinion, particularly in the Child Protection Law, the primary legal basis for children protection. Also, Indonesia is yet to have a robust and consistent practice of human rights-based instruments considered in the court, indicated by a lack of comprehensive understanding in law enforcement to implement this right. While the interpretation in law enforcement is essential to be optimised toward child-oriented resolution, taking the child's opinion in court promotes human rights practice in Indonesia. Compared to adults, children are complex, particularly in a case of a child victim of rape-related pregnancy. The forensic approach can be an alternative by involving forensic experts in courts to consider a child's psychology and physical condition.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43446516","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 : 2023-05-10DOI: 10.19184/ejlh.v10i1.37058
Rongeet Poddar
The participation of children in a political demonstration has proven to be an enduring issue in India owing to the public agitations against the Citizenship Amendment Act and the farm laws, with the latter being withdrawn recently. Under the hegemonic liberal paradigm, the underlying risk is that civil and political rights may be envisaged as the exclusive domain of adults. Children are merely viewed as apprentice citizens who do not have the capacity to exercise rational choice. The operative presumption is located in a binary wherein children are pliant beneficiaries, and the state is a benign caretaker in charge of determining their best interests. It thereby negates children’s autonomy and reduces them to disenfranchised spectators in an adult-centric social fabric. Moreover, the protectionist approach enables the state to evade its obligation of preserving democratic spaces wherein minors can protest safely and make their voices heard. State functionaries and judicial authorities in India have also been complicit in adopting an infantilising stance. In this paper, the author makes a case for recognising the agency of children such that they can exercise their ‘autonomy’ right to political participation. This paper incorporates diverse perspectives in existing child rights literature, including those emanating from the Global South, to argue in favour of an epistemic reorientation in child rights law discourse. Moreover, the author relies upon key interpretations of UNCRC provisions made by the Committee on the Rights of the Child and argues for facilitating a participative environment where children can exercise their civil and political rights. The ‘best interests’ test should not be wielded as a sword from an adult standpoint to curtail children’s rights in the political domain.
{"title":"Political Participation of Minors in India: A Critical Perspective from the Prism of the UNCRC","authors":"Rongeet Poddar","doi":"10.19184/ejlh.v10i1.37058","DOIUrl":"https://doi.org/10.19184/ejlh.v10i1.37058","url":null,"abstract":"The participation of children in a political demonstration has proven to be an enduring issue in India owing to the public agitations against the Citizenship Amendment Act and the farm laws, with the latter being withdrawn recently. Under the hegemonic liberal paradigm, the underlying risk is that civil and political rights may be envisaged as the exclusive domain of adults. Children are merely viewed as apprentice citizens who do not have the capacity to exercise rational choice. The operative presumption is located in a binary wherein children are pliant beneficiaries, and the state is a benign caretaker in charge of determining their best interests. It thereby negates children’s autonomy and reduces them to disenfranchised spectators in an adult-centric social fabric. Moreover, the protectionist approach enables the state to evade its obligation of preserving democratic spaces wherein minors can protest safely and make their voices heard. State functionaries and judicial authorities in India have also been complicit in adopting an infantilising stance. In this paper, the author makes a case for recognising the agency of children such that they can exercise their ‘autonomy’ right to political participation. This paper incorporates diverse perspectives in existing child rights literature, including those emanating from the Global South, to argue in favour of an epistemic reorientation in child rights law discourse. Moreover, the author relies upon key interpretations of UNCRC provisions made by the Committee on the Rights of the Child and argues for facilitating a participative environment where children can exercise their civil and political rights. The ‘best interests’ test should not be wielded as a sword from an adult standpoint to curtail children’s rights in the political domain.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48853899","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 : 2023-05-04DOI: 10.19184/ejlh.v10i1.37197
Milda Istiqomah, Armin Alimardani
A consistent criticism of the Indonesian criminal justice system indicates its dysfunctional judicial system plagued by systemic corruption and government interference. Given the high profiles of terrorism offences and their strict punishment, it is essential to maintain consistency in sentencing decisions for these crimes. However, there is a significant lack of evidence-based studies of sentencing in Indonesian courts, and none specifically related to terrorism offences. The aim of this study is to analyse the application of the right to a fair trial in sentencing terrorism offences in Indonesia through the interpretive lens of Southern criminology. This study takes a multi-dimensional approach of historical, legal, and empirical analyses to provide an in-depth understanding of factors that affect sentencing decisions in terrorism cases. First, the historical analysis explains that prosecutions for terrorism today include radical Islamists, minority extremists and separatist groups willing to resort to violence against the state and society to achieve their goals. Second, the legal analysis highlights how the existing sentencing regimes provide limited guidance for judges when determining the appropriate punishment for terrorist offenders, frequently leading to prison sentences exceeding 10 years. Third, qualitative analysis further explains that judges use their discretion to avoid the minimum mandatory sentence in specific circumstances, such as in the case of juvenile offenders. A Southern criminology approach helps explain terrorism sentencing in the broader historical, legal, and socio-political contexts. Ultimately, the way laws are written and how judges determine the sentences of terrorism offences result from the persistent impact of colonialism, authoritarianism, and the 'war on terror' discourse. The case study reveals violations of international human rights rules and standards. Terrorism sentencing practices also exemplify a troubling trend where national security trumps the fundamental procedural rights of terrorist offenders.
{"title":"The Tension Between Combating Terrorism and Protecting the Right to a Fair Trial in Indonesia","authors":"Milda Istiqomah, Armin Alimardani","doi":"10.19184/ejlh.v10i1.37197","DOIUrl":"https://doi.org/10.19184/ejlh.v10i1.37197","url":null,"abstract":"A consistent criticism of the Indonesian criminal justice system indicates its dysfunctional judicial system plagued by systemic corruption and government interference. Given the high profiles of terrorism offences and their strict punishment, it is essential to maintain consistency in sentencing decisions for these crimes. However, there is a significant lack of evidence-based studies of sentencing in Indonesian courts, and none specifically related to terrorism offences. The aim of this study is to analyse the application of the right to a fair trial in sentencing terrorism offences in Indonesia through the interpretive lens of Southern criminology. This study takes a multi-dimensional approach of historical, legal, and empirical analyses to provide an in-depth understanding of factors that affect sentencing decisions in terrorism cases. First, the historical analysis explains that prosecutions for terrorism today include radical Islamists, minority extremists and separatist groups willing to resort to violence against the state and society to achieve their goals. Second, the legal analysis highlights how the existing sentencing regimes provide limited guidance for judges when determining the appropriate punishment for terrorist offenders, frequently leading to prison sentences exceeding 10 years. Third, qualitative analysis further explains that judges use their discretion to avoid the minimum mandatory sentence in specific circumstances, such as in the case of juvenile offenders. A Southern criminology approach helps explain terrorism sentencing in the broader historical, legal, and socio-political contexts. Ultimately, the way laws are written and how judges determine the sentences of terrorism offences result from the persistent impact of colonialism, authoritarianism, and the 'war on terror' discourse. The case study reveals violations of international human rights rules and standards. Terrorism sentencing practices also exemplify a troubling trend where national security trumps the fundamental procedural rights of terrorist offenders.","PeriodicalId":34644,"journal":{"name":"Lentera Hukum","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49462911","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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