Pub Date : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).685
Mohd. Din, M. Nur
The purpose of this article is to determine the factors that hinder the implementation of the whipping sentence under Aceh’s Jinayah Qanun and the efforts made in overcoming these obstacles. The method used is empirical juridical, using data from the field as the main source. This is done by collecting data from several regions in Aceh, followed by interviews with the prosecutors as the executor in Sharia Court for the Jinayah case. The results show that the execution is the final stage of the judicial process and is expected to achieve the objectives of justice, but there are some cases of jinayah which are not fully executed due to some obstacles that arose. The main obstacles are lack of funding, human resources, and coordination among subsystems in the jinayah justice. The lack of funding will result in delays in implementing whipping punishment so that when it is carried out, it is difficult to bring the convicted person into prison. The efforts made to overcome this problem are by carrying out whipping with minimum funding, developing human resources, and coordinating with the local government to support this execution process.
{"title":"THE ENFORCEMENT OF THE WHIPPING SENTENCE AS PART OF THE JINAYAH LAW IN ACEH PROVINCE, INDONESIA","authors":"Mohd. Din, M. Nur","doi":"10.31436/iiumlj.v29i(s2).685","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).685","url":null,"abstract":"The purpose of this article is to determine the factors that hinder the implementation of the whipping sentence under Aceh’s Jinayah Qanun and the efforts made in overcoming these obstacles. The method used is empirical juridical, using data from the field as the main source. This is done by collecting data from several regions in Aceh, followed by interviews with the prosecutors as the executor in Sharia Court for the Jinayah case. The results show that the execution is the final stage of the judicial process and is expected to achieve the objectives of justice, but there are some cases of jinayah which are not fully executed due to some obstacles that arose. The main obstacles are lack of funding, human resources, and coordination among subsystems in the jinayah justice. The lack of funding will result in delays in implementing whipping punishment so that when it is carried out, it is difficult to bring the convicted person into prison. The efforts made to overcome this problem are by carrying out whipping with minimum funding, developing human resources, and coordinating with the local government to support this execution process. ","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43008381","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).664
Abdulkadir Bolaji
Just as the Universal Declaration of Human Rights of 1948 marked the beginning of contemporary international human rights law and the subsequent adoption of regional human rights instruments, so the Stockholm Declaration of 1972 marked the genesis of a rights-based approach to the protection of environment. Since then, human rights have become a legal weapon exerted in the strive to protect the environment and enhance access to environmental justice. Hence, it is not a mere theoretical discourse that environmental degradation affects the enjoyment of basic human rights. It has now become recognized that human rights such as the right to life and many others can only be enjoyed in a polluted free environment. It is against this background that this paper examines how the right to peaceful enjoyment of property as guaranteed in international and regional instruments on human rights has been construed to foster environmental protection. To achieve this, interpretations through decided cases are examined for a proper evaluation of judicial attitude and willingness in this respect.
{"title":"UPHOLDING ENVIRONMENTAL HUMAN RIGHTS THROUGH JUDICIAL INTERPRETATION OF PEACEFUL ENJOYMENT OF PROPERTY","authors":"Abdulkadir Bolaji","doi":"10.31436/iiumlj.v29i(s2).664","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).664","url":null,"abstract":"Just as the Universal Declaration of Human Rights of 1948 marked the beginning of contemporary international human rights law and the subsequent adoption of regional human rights instruments, so the Stockholm Declaration of 1972 marked the genesis of a rights-based approach to the protection of environment. Since then, human rights have become a legal weapon exerted in the strive to protect the environment and enhance access to environmental justice. Hence, it is not a mere theoretical discourse that environmental degradation affects the enjoyment of basic human rights. It has now become recognized that human rights such as the right to life and many others can only be enjoyed in a polluted free environment. It is against this background that this paper examines how the right to peaceful enjoyment of property as guaranteed in international and regional instruments on human rights has been construed to foster environmental protection. To achieve this, interpretations through decided cases are examined for a proper evaluation of judicial attitude and willingness in this respect.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45209386","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}
Indonesia is known as a maritime state which is associated with marine and fisheries activities. The existence of a harbor, such as the Port of Belawan in Medan City, often causes conflicts in the issue of marine fisheries, especially related to sea pollution. This article investigates the implementation of compensation when traditional fishermen are affected by environmental pollution, especially tankers, its opportunities and challenges in the Indonesian legal context. This study employed a normative and empirical approach, covering the study sites of North Sumatra and Riau Islands Province, which share the border with the Malacca Strait. To date, there are no rules regarding compensation for fishermen, however, there are some embryonic mode such as the existence of experienced human resources from the Environmental Agency of Riau Islands Province in the implementation of compensation for traditional fishermen affected by pollution of the marine environment. This study encourages the local government (i.e., the provincial government) to give more attention related to the compensation for traditional fishermen who are affected by pollution of the marine environment in the form of Regional Regulations or other policies.
{"title":"REGULATING COMPENSATION FOR THE PROTECTION OF TRADITIONAL FISHERMEN AFFECTED BY POLLUTION IN INDONESIA","authors":"Suhaidi Suhaidi, Sutiarnoto Sutiarnoto, Syaiful Azam, Rosmalinda Rosmalinda","doi":"10.31436/iiumlj.v29i(s2).681","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).681","url":null,"abstract":"Indonesia is known as a maritime state which is associated with marine and fisheries activities. The existence of a harbor, such as the Port of Belawan in Medan City, often causes conflicts in the issue of marine fisheries, especially related to sea pollution. This article investigates the implementation of compensation when traditional fishermen are affected by environmental pollution, especially tankers, its opportunities and challenges in the Indonesian legal context. This study employed a normative and empirical approach, covering the study sites of North Sumatra and Riau Islands Province, which share the border with the Malacca Strait. To date, there are no rules regarding compensation for fishermen, however, there are some embryonic mode such as the existence of experienced human resources from the Environmental Agency of Riau Islands Province in the implementation of compensation for traditional fishermen affected by pollution of the marine environment. This study encourages the local government (i.e., the provincial government) to give more attention related to the compensation for traditional fishermen who are affected by pollution of the marine environment in the form of Regional Regulations or other policies.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47588399","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).680
Yanis Rinaldi, Suwarno, Irvianty
The Krueng Peusangan watershed in the Aceh Province, Indonesia, has an important role in the daily life of residents in the surrounding areas. The watershed serves as a supply of clean water, shelter, food sources, and sources of income for hundreds of thousands of people. Forest encroachment activities, mining, plantations, and land conversion have interrupted the watershed balance. These various activities cause threats of loss of forest area, biodiversity extinction, water crisis, flooding, human-animal conflict, and also global warming and food crisis. Therefore, this article analyses the law and policies issued by the Central, Provincial, and Regency/City Governments related to the management of the Krueng Peusangan Watershed and to examine the legal framework needed for watershed protection and management. This type of research is normative legal research using the regulatory, conceptual, and case approaches. The results revealed that the existing legal framework has not fully protected watershed rescue. The policies issued are still partial and have not been integrated on a regional or sectoral basis. This paper suggests that the Government of Aceh and Regency/City Governments to revise several Qanun, i.e., the Mid-Term Development Plan Qanun, the Watershed Management Qanun, Strategic Environmental Assessment Qanun, Qanun of Environmental Protection and Management Plan, and laws and regulations in the environmental, forestry, plantation and mining sectors.
{"title":"IMPLEMENTATION OF THE LAW AND POLICY IN PROTECTING AND MANAGING THE KRUENG PEUSANGAN WATERSHED, ACEH PROVINCE, INDONESIA","authors":"Yanis Rinaldi, Suwarno, Irvianty","doi":"10.31436/iiumlj.v29i(s2).680","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).680","url":null,"abstract":"The Krueng Peusangan watershed in the Aceh Province, Indonesia, has an important role in the daily life of residents in the surrounding areas. The watershed serves as a supply of clean water, shelter, food sources, and sources of income for hundreds of thousands of people. Forest encroachment activities, mining, plantations, and land conversion have interrupted the watershed balance. These various activities cause threats of loss of forest area, biodiversity extinction, water crisis, flooding, human-animal conflict, and also global warming and food crisis. Therefore, this article analyses the law and policies issued by the Central, Provincial, and Regency/City Governments related to the management of the Krueng Peusangan Watershed and to examine the legal framework needed for watershed protection and management. This type of research is normative legal research using the regulatory, conceptual, and case approaches. The results revealed that the existing legal framework has not fully protected watershed rescue. The policies issued are still partial and have not been integrated on a regional or sectoral basis. This paper suggests that the Government of Aceh and Regency/City Governments to revise several Qanun, i.e., the Mid-Term Development Plan Qanun, the Watershed Management Qanun, Strategic Environmental Assessment Qanun, Qanun of Environmental Protection and Management Plan, and laws and regulations in the environmental, forestry, plantation and mining sectors.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42941460","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).679
S. Safrina
Nowadays, companies are not only required to provide information on financial accountability but also about corporate performance related to environmental and social activities to promote shareholder values and sustainable practices. In Indonesia, corporate social and environmental responsibility is an emerging and relatively new concept in terms of practices, economic and political aspects. This paper aims to investigate the performance of the social and environmental responsibility of three limited liability state-owned companies in Indonesia and covering the company’s reports, namely annual report, CSR report, and sustainability report. The study concluded that there is a significant relation between CSR activities, social and environmental protection on Indonesian limited liability state-owned companies, both in relation to legal obligation, as well as relating to company’s commitment to show environmentally good behaviour through CSR activities.
{"title":"WHY CSR IS RELEVANT TO ENVIRONMENTAL PROTECTION? A STUDY OF CSR PERFORMANCE ON INDONESIAN LIMITED LIABILITY STATE-OWNED COMPANIES","authors":"S. Safrina","doi":"10.31436/iiumlj.v29i(s2).679","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).679","url":null,"abstract":"Nowadays, companies are not only required to provide information on financial accountability but also about corporate performance related to environmental and social activities to promote shareholder values and sustainable practices. In Indonesia, corporate social and environmental responsibility is an emerging and relatively new concept in terms of practices, economic and political aspects. This paper aims to investigate the performance of the social and environmental responsibility of three limited liability state-owned companies in Indonesia and covering the company’s reports, namely annual report, CSR report, and sustainability report. The study concluded that there is a significant relation between CSR activities, social and environmental protection on Indonesian limited liability state-owned companies, both in relation to legal obligation, as well as relating to company’s commitment to show environmentally good behaviour through CSR activities.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43742698","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).592
Mst. Rezwana Karim
This study aims to evaluate the provisions concerning the protection of elderly parents in the international and national legal framework and also in major religious scriptures in the context of Bangladesh. Based on the secondary sources of information, the study has observed that in spite of ample provisions, parents are not fully protected from abuse. Besides international conventions, the Parents’ Maintenance Act (PMA) 2013 and Islamic principles concerning parents are the key sources providing sufficient guidance for the protection of elderly parents in the Muslim majority Bangladesh. Although there are provisions of punishment for failing to provide parents’ maintenance in the existing law, very little improvement is observed concerning their maintenance. This study suggests the incorporation of the provision to enforce children to return the property of their parent, in the event they failed or declined to take care of their elderly parents. The study has emphasized the need to increase awareness pertaining to maintenance and related laws amongst citizens through mass campaigns. The further initiative should be undertaken to ignite the young generation with religious and moral values. Early implementation of the PMA’s draft rule is suggested for the assurance of parent’s maintenance in Bangladesh.
{"title":"PROTECTION OF ELDERLY PARENTS IN BANGLADESH: AN EVALUATION OF RELEVANT GUIDELINES","authors":"Mst. Rezwana Karim","doi":"10.31436/iiumlj.v29i(s2).592","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).592","url":null,"abstract":"This study aims to evaluate the provisions concerning the protection of elderly parents in the international and national legal framework and also in major religious scriptures in the context of Bangladesh. Based on the secondary sources of information, the study has observed that in spite of ample provisions, parents are not fully protected from abuse. Besides international conventions, the Parents’ Maintenance Act (PMA) 2013 and Islamic principles concerning parents are the key sources providing sufficient guidance for the protection of elderly parents in the Muslim majority Bangladesh. Although there are provisions of punishment for failing to provide parents’ maintenance in the existing law, very little improvement is observed concerning their maintenance. This study suggests the incorporation of the provision to enforce children to return the property of their parent, in the event they failed or declined to take care of their elderly parents. The study has emphasized the need to increase awareness pertaining to maintenance and related laws amongst citizens through mass campaigns. The further initiative should be undertaken to ignite the young generation with religious and moral values. Early implementation of the PMA’s draft rule is suggested for the assurance of parent’s maintenance in Bangladesh. ","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46488090","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).683
Sri Walny Rahayu, Teuku Ahmad Yani, Azhari Yahya
This paper aims to explain the causes of child trafficking in Indonesia and the efforts made by the Customary Institutions in preventing Child Trafficking in line with local wisdom values. This paper adopts normative juridical research by using the data collected through library research on regulations for child trafficking. The approach used is the historical approach and the conceptual approach. The role of Customary Institutions in Aceh and community involvement to prevent acts of violence and child exploitation is provided in the local law. The position and function of the Aceh Customary Institutions are dominant and can be used as a model of prevention of trafficking in children. Local wisdom is traceable in society despite some of these basic values are fading due to globalization and consumerism.
{"title":"PREVENTING CHILD TRAFFICKING BY CUSTOMARY INSTITUTIONS AND LOCAL WISDOM IN ACEH PROVINCE, INDONESIA","authors":"Sri Walny Rahayu, Teuku Ahmad Yani, Azhari Yahya","doi":"10.31436/iiumlj.v29i(s2).683","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).683","url":null,"abstract":"This paper aims to explain the causes of child trafficking in Indonesia and the efforts made by the Customary Institutions in preventing Child Trafficking in line with local wisdom values. This paper adopts normative juridical research by using the data collected through library research on regulations for child trafficking. The approach used is the historical approach and the conceptual approach. The role of Customary Institutions in Aceh and community involvement to prevent acts of violence and child exploitation is provided in the local law. The position and function of the Aceh Customary Institutions are dominant and can be used as a model of prevention of trafficking in children. Local wisdom is traceable in society despite some of these basic values are fading due to globalization and consumerism.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44920147","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).678
Teuku Ahmad Dadek, H. Husni, Mahdi Syahbandir, M. A. Aiyub Kadir, Yanis Rinaldi, S. Sulaiman
Article 7 paragraph (2) of the Law Number 24 Year 2007 concerning Disaster Management (UUPB) stipulates that the establishment of a disaster emergency status must contain indicators that include the number of victims, property loss, the damage of the infrastructure and facilities, the extent to which an area is affected by the disaster and the socio-economic impacts that arise. Paragraph (3) of the article states that further provisions regarding the establishment of the status and the level of the disaster are regulated through a Presidential Regulation. However, the Presidential Regulation has not yet been issued while the Letter of Decision on the Disaster Emergency Status continues to be published, which causes legal uncertainty in its implementation. Hence this article investigates the legal mechanism in determining a disaster emergency status that guarantees legal certainty, its legal implications, and steps the (central) Government and the Regional Government should take in dealing with such legal implications. The research method employed in this study is the juridical normative research. Research on disaster legislation, especially in determining disaster emergency status, has not yet demonstrated legal certainty. This is due to the absence of legal mechanisms and positive legal formalities that are built from legal facts that lead to multiple interpretations and to legal disputes. The absence of the Presidential Regulation (Perpres) as a UUPB manifestation for determining the emergency status of a disaster as stipulated by autonomous provinces/districts (Decree) has contributed to the potential arbitrary use of state funds. Therefore, the Presidential regulation is urgently required.
{"title":"DETERMINATION OF THE LEGAL STATUS FOR DISASTER EMERGENCY IN INDONESIA","authors":"Teuku Ahmad Dadek, H. Husni, Mahdi Syahbandir, M. A. Aiyub Kadir, Yanis Rinaldi, S. Sulaiman","doi":"10.31436/iiumlj.v29i(s2).678","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).678","url":null,"abstract":"Article 7 paragraph (2) of the Law Number 24 Year 2007 concerning Disaster Management (UUPB) stipulates that the establishment of a disaster emergency status must contain indicators that include the number of victims, property loss, the damage of the infrastructure and facilities, the extent to which an area is affected by the disaster and the socio-economic impacts that arise. Paragraph (3) of the article states that further provisions regarding the establishment of the status and the level of the disaster are regulated through a Presidential Regulation. However, the Presidential Regulation has not yet been issued while the Letter of Decision on the Disaster Emergency Status continues to be published, which causes legal uncertainty in its implementation. Hence this article investigates the legal mechanism in determining a disaster emergency status that guarantees legal certainty, its legal implications, and steps the (central) Government and the Regional Government should take in dealing with such legal implications. The research method employed in this study is the juridical normative research. Research on disaster legislation, especially in determining disaster emergency status, has not yet demonstrated legal certainty. This is due to the absence of legal mechanisms and positive legal formalities that are built from legal facts that lead to multiple interpretations and to legal disputes. The absence of the Presidential Regulation (Perpres) as a UUPB manifestation for determining the emergency status of a disaster as stipulated by autonomous provinces/districts (Decree) has contributed to the potential arbitrary use of state funds. Therefore, the Presidential regulation is urgently required.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44852766","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).682
Sanusi Bintang, Mujibussalim Mujibussalim, M. Mahfud, Fikri Fikri
A confidentiality clause is a clause in investor-state contracts which is in the operative part of the contract to guarantee adequate protection of the trade secrets of the contracting parties. This article argues that there is a need to change the current practice where investor-state contracts in Indonesia utilizes broadly defined confidentiality clauses as a means to protect trade secrets in international business transactions. This is because a broadly defined confidentiality clause is contradictory to the provisions of the Act on Public Information Disclosure (APID). APID is aimed mainly at providing public information disclosure. The public information includes public contracts, such as investor-state contracts. Therefore, a new model of the confidentiality clause is needed for the protection of trade secrets as intended by the Act on Trade Secrets (ATS) and contract law as well as public information disclosure as intended by APID. This article employs doctrinal legal research. The research utilized, primary, secondary, and tertiary legal authorities. The primary legal material intensively used in this article consists of mandatory-primary legal authorities, in the form of statutes and contracts. The contracts used are the investor-state contracts of Aceh Province, Indonesia. The finding shows that a new model of the confidentiality clause can be created by accommodating both the interest of the state for providing public information disclosure based on APID and the interest of investors for the protection of trade secrets based on ATS and contract law. Investor-state contracts are a specific type of contract which has specific characteristics that apply to both private law and public law. They are different from purely international commercial contracts which only apply private law. Investor-state contract drafters need to be aware of this difference and provide a more balanced confidentiality clause in the contracts.
{"title":"CONFIDENTIALITY CLAUSES IN INVESTOR-STATE CONTRACTS FOR THE PROTECTION OF TRADE SECRETS AFTER PROMULGATION OF THE INDONESIAN ACT ON PUBLIC INFORMATION DISCLOSURE","authors":"Sanusi Bintang, Mujibussalim Mujibussalim, M. Mahfud, Fikri Fikri","doi":"10.31436/iiumlj.v29i(s2).682","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).682","url":null,"abstract":"A confidentiality clause is a clause in investor-state contracts which is in the operative part of the contract to guarantee adequate protection of the trade secrets of the contracting parties. This article argues that there is a need to change the current practice where investor-state contracts in Indonesia utilizes broadly defined confidentiality clauses as a means to protect trade secrets in international business transactions. This is because a broadly defined confidentiality clause is contradictory to the provisions of the Act on Public Information Disclosure (APID). APID is aimed mainly at providing public information disclosure. The public information includes public contracts, such as investor-state contracts. Therefore, a new model of the confidentiality clause is needed for the protection of trade secrets as intended by the Act on Trade Secrets (ATS) and contract law as well as public information disclosure as intended by APID. This article employs doctrinal legal research. The research utilized, primary, secondary, and tertiary legal authorities. The primary legal material intensively used in this article consists of mandatory-primary legal authorities, in the form of statutes and contracts. The contracts used are the investor-state contracts of Aceh Province, Indonesia. The finding shows that a new model of the confidentiality clause can be created by accommodating both the interest of the state for providing public information disclosure based on APID and the interest of investors for the protection of trade secrets based on ATS and contract law. Investor-state contracts are a specific type of contract which has specific characteristics that apply to both private law and public law. They are different from purely international commercial contracts which only apply private law. Investor-state contract drafters need to be aware of this difference and provide a more balanced confidentiality clause in the contracts.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43309080","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 : 2021-11-03DOI: 10.31436/iiumlj.v29i(s2).677
Adwani Adwani, R. Rosmawati, M. A. Aiyub Kadir
The coast of western Indonesia (Aceh province) has been the entrance for Rohingya refugees since 2012. At the beginning of 2020, the Rohingya refugees continued to arrive, although some of them have been resettled and transferred to the third countries. The Indonesian government rejected a large number of Rohingya refugees because there were no lex specialis in the Indonesian immigration arrangement related to asylum seekers and refugees. Historically, Indonesia was a country with commitment and experiences in dealing with refugees, however to date, Indonesia refused to become a party to the 1951 International Refugee Convention and 1967 Protocol on Refugees. Hence, there is no legal standards of the refugee management in Indonesia, and thus it complicates the management of the incoming Rohingyas. Responding to such issue, the government has issued the Presidential Regulation Number 125 of 2016 concerning the foreign refugee management to provide a temporary legal standard for all forms of refugee protection in Indonesia. However, such regulation has yet to comprehensively settled the management of the Rohingya people in Indonesia, particularly in Aceh province. This paper strongly advocates the Indonesian government to ratify the 1951 International Refugee Convention as to protect and settle the refugee under the non-refoulment principle which is fundamentally referred to humanitarian values.
{"title":"THE RESPONSIBILITY IN PROTECTING THE ROHINGYA REFUGEES IN ACEH PROVINCE, INDONESIA: AN INTERNATIONAL REFUGEES LAW PERSPECTIVE","authors":"Adwani Adwani, R. Rosmawati, M. A. Aiyub Kadir","doi":"10.31436/iiumlj.v29i(s2).677","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s2).677","url":null,"abstract":"The coast of western Indonesia (Aceh province) has been the entrance for Rohingya refugees since 2012. At the beginning of 2020, the Rohingya refugees continued to arrive, although some of them have been resettled and transferred to the third countries. The Indonesian government rejected a large number of Rohingya refugees because there were no lex specialis in the Indonesian immigration arrangement related to asylum seekers and refugees. Historically, Indonesia was a country with commitment and experiences in dealing with refugees, however to date, Indonesia refused to become a party to the 1951 International Refugee Convention and 1967 Protocol on Refugees. Hence, there is no legal standards of the refugee management in Indonesia, and thus it complicates the management of the incoming Rohingyas. Responding to such issue, the government has issued the Presidential Regulation Number 125 of 2016 concerning the foreign refugee management to provide a temporary legal standard for all forms of refugee protection in Indonesia. However, such regulation has yet to comprehensively settled the management of the Rohingya people in Indonesia, particularly in Aceh province. This paper strongly advocates the Indonesian government to ratify the 1951 International Refugee Convention as to protect and settle the refugee under the non-refoulment principle which is fundamentally referred to humanitarian values.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44411642","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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