The purpose of this study is to show how the Japanese government has created laws with harsher punishment since the 1990s. While a tendency toward harsher punishment is common in advanced Western countries, a similar tendency in Japan has prompted scholarly discussion on whether it can be understood through the “penal-populism” framework. However, it lacks in systematic evidence. This study presents three findings that differ from previous studies through a quantitative analysis of legislation with harsher punishment. First, while previous literature argues that the legislation increased in the latter half of the 1990s, this study shows that it peaked in the middle of the 2000s. Second, while previous literature argues that the bureaucrats of the Ministry of Justice promote the legislation, this study shows that it is caused by every ministry’s drafting Bills. Third, this study shows that it does not quantitatively avoid partisan conflicts, contrary to the prediction of the “penal-populism” theory.
{"title":"A Quantitative Analysis of Legislation with Harsher Punishment in Japan","authors":"S. Kyo","doi":"10.1017/als.2020.55","DOIUrl":"https://doi.org/10.1017/als.2020.55","url":null,"abstract":"\u0000 The purpose of this study is to show how the Japanese government has created laws with harsher punishment since the 1990s. While a tendency toward harsher punishment is common in advanced Western countries, a similar tendency in Japan has prompted scholarly discussion on whether it can be understood through the “penal-populism” framework. However, it lacks in systematic evidence. This study presents three findings that differ from previous studies through a quantitative analysis of legislation with harsher punishment. First, while previous literature argues that the legislation increased in the latter half of the 1990s, this study shows that it peaked in the middle of the 2000s. Second, while previous literature argues that the bureaucrats of the Ministry of Justice promote the legislation, this study shows that it is caused by every ministry’s drafting Bills. Third, this study shows that it does not quantitatively avoid partisan conflicts, contrary to the prediction of the “penal-populism” theory.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41851649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of “Asian law” and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization.
{"title":"Principles of Asian Contract Law at the Crossroads of Standardization and Legal Pluralism","authors":"A. Grebieniow","doi":"10.1017/als.2021.24","DOIUrl":"https://doi.org/10.1017/als.2021.24","url":null,"abstract":"Abstract The Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of “Asian law” and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"10 1","pages":"306 - 338"},"PeriodicalIF":0.8,"publicationDate":"2021-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42163591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Introduction, Indonesia’s approach towards refugee protection is contextualized historically and regionally in light of the enactment of Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR). In particular, we describe the legal and policy framework for refugee protection in Indonesia and analyze its underlying norms and values, including the constitutional right to asylum. We explain how the legal framework competes with Law No. 6 of 2011 on Immigration, which facilitates a discretionary, securitized, and ‘humanitarian’ approach to refugee policy, which is inconsistent with Indonesia’s legal responsibilities. In conclusion, we assess both the challenges and opportunities provided by the PR.
{"title":"The False Promise of Presidential Regulation No. 125 of 2016?","authors":"S. Kneebone, Antje Missbach, Balawyn Jones","doi":"10.1017/als.2021.2","DOIUrl":"https://doi.org/10.1017/als.2021.2","url":null,"abstract":"\u0000 In this Introduction, Indonesia’s approach towards refugee protection is contextualized historically and regionally in light of the enactment of Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR). In particular, we describe the legal and policy framework for refugee protection in Indonesia and analyze its underlying norms and values, including the constitutional right to asylum. We explain how the legal framework competes with Law No. 6 of 2011 on Immigration, which facilitates a discretionary, securitized, and ‘humanitarian’ approach to refugee policy, which is inconsistent with Indonesia’s legal responsibilities. In conclusion, we assess both the challenges and opportunities provided by the PR.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56964077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses the “local turn” in refugee governance in Indonesia through a comparative case-study of two cities: Makassar and Jakarta. It compares how these two cities have responded to the obligations to provide alternative accommodation to detention, imposed upon them by the Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR). While the shift to non-custodial community shelters has been widely praised, we discuss issues that arose when the national government shifted the responsibility for providing accommodation for refugees to local governments, without the allocation of the required funds. The outcome has been a general lack of engagement by local governments. By locating this case-study in the wider global trend of “local turns” in the management of refugee issues, we argue that, in Indonesia, the “local turn” in responsibility for refugees is not fostering a protection approach, but has worsened the conditions for refugees.
{"title":"The Role of Local Governments in Accommodating Refugees in Indonesia: Investigating Best-Case and Worst-Case Scenarios","authors":"Antje Missbach, Yunizar Adiputera","doi":"10.1017/als.2021.5","DOIUrl":"https://doi.org/10.1017/als.2021.5","url":null,"abstract":"\u0000 This article analyses the “local turn” in refugee governance in Indonesia through a comparative case-study of two cities: Makassar and Jakarta. It compares how these two cities have responded to the obligations to provide alternative accommodation to detention, imposed upon them by the Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR). While the shift to non-custodial community shelters has been widely praised, we discuss issues that arose when the national government shifted the responsibility for providing accommodation for refugees to local governments, without the allocation of the required funds. The outcome has been a general lack of engagement by local governments. By locating this case-study in the wider global trend of “local turns” in the management of refugee issues, we argue that, in Indonesia, the “local turn” in responsibility for refugees is not fostering a protection approach, but has worsened the conditions for refugees.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46838377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. Suyatna, I. Arsika, Ni Gusti Ayu Dyah Satyawati, Rohaida Nordin, Balawyn Jones
This article assesses the responsibility of local governments in Indonesia for the management of refugee care, following the enactment of Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (the “PR”). It highlights the limited authority of local governments in handling refugee issues—which is an issue that cuts across several national legal and administrative regimes including Foreign Affairs, Human Rights, and Immigration. This article focuses on the constraints of local political dynamics and budgeting in allocating local government funds for refugee care. In addressing these concerns, the authors argue that the PR should be amended to explicitly define the role of local governments in managing refugee issues and to include the regional revenue and expenditure budget as a source of funding. In addition, the authors argue that local governments that are hosting refugees should establish relevant local regulations for implementation of the PR.
{"title":"Assessment of the Responsibility of Local Governments in Indonesia for the Management of Refugee Care","authors":"I. Suyatna, I. Arsika, Ni Gusti Ayu Dyah Satyawati, Rohaida Nordin, Balawyn Jones","doi":"10.1017/als.2021.4","DOIUrl":"https://doi.org/10.1017/als.2021.4","url":null,"abstract":"\u0000 This article assesses the responsibility of local governments in Indonesia for the management of refugee care, following the enactment of Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (the “PR”). It highlights the limited authority of local governments in handling refugee issues—which is an issue that cuts across several national legal and administrative regimes including Foreign Affairs, Human Rights, and Immigration. This article focuses on the constraints of local political dynamics and budgeting in allocating local government funds for refugee care. In addressing these concerns, the authors argue that the PR should be amended to explicitly define the role of local governments in managing refugee issues and to include the regional revenue and expenditure budget as a source of funding. In addition, the authors argue that local governments that are hosting refugees should establish relevant local regulations for implementation of the PR.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49595918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Article 28G(2) in Indonesia’s 1945 Constitution reflects a human rights approach to asylum; it guarantees “the right to obtain political asylum from another country,” together with freedom from torture. It imposes an obligation upon the state to give access to basic rights to those to whom it offers asylum, following an appropriate determination procedure. By contrast, in Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees, the Indonesian government’s response to asylum seekers and refugees is conceptualized as “humanitarian assistance,” and through a politicized and securitized immigration-control approach. We argue that the competition between these three approaches—the human right to asylum, humanitarianism, and immigration control—constitutes a “triangulation” of asylum and refugee protection in Indonesia, in which the latter two prevail. In light of this framework, this article provides a socio-political and legal analysis of why Article 28G(2) has not been widely accepted as the basis of asylum and refugee protection in Indonesia.
{"title":"The Constitutional Right to Asylum and Humanitarianism in Indonesian Law: “Foreign Refugees” and PR 125/2016","authors":"Bilal Dewansyah, Ratu Durotun Nafisah","doi":"10.1017/als.2021.8","DOIUrl":"https://doi.org/10.1017/als.2021.8","url":null,"abstract":"\u0000 Article 28G(2) in Indonesia’s 1945 Constitution reflects a human rights approach to asylum; it guarantees “the right to obtain political asylum from another country,” together with freedom from torture. It imposes an obligation upon the state to give access to basic rights to those to whom it offers asylum, following an appropriate determination procedure. By contrast, in Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees, the Indonesian government’s response to asylum seekers and refugees is conceptualized as “humanitarian assistance,” and through a politicized and securitized immigration-control approach. We argue that the competition between these three approaches—the human right to asylum, humanitarianism, and immigration control—constitutes a “triangulation” of asylum and refugee protection in Indonesia, in which the latter two prevail. In light of this framework, this article provides a socio-political and legal analysis of why Article 28G(2) has not been widely accepted as the basis of asylum and refugee protection in Indonesia.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49035248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR) was a promising step to a better humanitarian response for refugees and asylum seekers arriving in Indonesia. It also provided a much-needed legal framework to validate refugees’ presence and to ground civil -society organizations’ advocacy on their behalf. However, a closer look at the PR and earlier drafts of the document shows serious compromises that: (1) reproduce the notion that refugees are only transiting in Indonesia; (2) frame refugees as passive objects, failing to recognize them as subjects with rights; and (3) prioritize security concerns that position refugees at odds with Indonesian society (masyarakat). Using the “What’s the Problem Represented to be” approach, this article highlights what is included and excluded from the PR and how it falls short of guaranteeing meaningful protection for refugees while living in Indonesia.
{"title":"What Are Refugees Represented to Be? A Frame Analysis of the Presidential Regulation No. 125 of 2016 Concerning the Treatment of Refugees “from Abroad”","authors":"Mahardhika Sjamsoe’oed Sadjad","doi":"10.1017/als.2021.3","DOIUrl":"https://doi.org/10.1017/als.2021.3","url":null,"abstract":"\u0000 The Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees (PR) was a promising step to a better humanitarian response for refugees and asylum seekers arriving in Indonesia. It also provided a much-needed legal framework to validate refugees’ presence and to ground civil -society organizations’ advocacy on their behalf. However, a closer look at the PR and earlier drafts of the document shows serious compromises that: (1) reproduce the notion that refugees are only transiting in Indonesia; (2) frame refugees as passive objects, failing to recognize them as subjects with rights; and (3) prioritize security concerns that position refugees at odds with Indonesian society (masyarakat). Using the “What’s the Problem Represented to be” approach, this article highlights what is included and excluded from the PR and how it falls short of guaranteeing meaningful protection for refugees while living in Indonesia.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46809359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.
{"title":"Connecting the Obligation Gap: Indonesia’s Non-Refoulement Responsibility Beyond the 1951 Refugee Convention","authors":"D. H. Tobing","doi":"10.1017/als.2021.7","DOIUrl":"https://doi.org/10.1017/als.2021.7","url":null,"abstract":"\u0000 This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49179570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial of “Dignity in East Asian Law and Society”","authors":"Setsuo Miyazawa","doi":"10.1017/als.2021.21","DOIUrl":"https://doi.org/10.1017/als.2021.21","url":null,"abstract":"","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"63 12","pages":"1-2"},"PeriodicalIF":0.8,"publicationDate":"2021-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138514347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The term “ legal transplant ” refers to the movement of a rule or a system of law from one jurisdiction to another. The term has been widely used in studies of legal development and change since it was introduced by Allan Watson, a Scottish scholar in Roman law and comparative law, in 1974. 1 The jurisdiction in which the transplanted legal rule or legal system originated is usually called a “ donor, ” while the jurisdiction in which the given legal rule or legal system is transplanted is usually called a “ recipient. ” 2 When legal transplant in an Asian jurisdiction was analyzed, the donor was usually a non-Asian jurisdiction or organization. 3 However, Japan has been engaging in several legal assistance activities in Asian jurisdictions since the mid-1900s, 4 while there is an evalua-tion about China under Jinping that “ Western donors now face competition only development but in legal assistance, 5 I the following
{"title":"Legal transplants in contemporary Asia: Foreword","authors":"S. Miyazawa","doi":"10.1017/als.2021.41","DOIUrl":"https://doi.org/10.1017/als.2021.41","url":null,"abstract":"The term “ legal transplant ” refers to the movement of a rule or a system of law from one jurisdiction to another. The term has been widely used in studies of legal development and change since it was introduced by Allan Watson, a Scottish scholar in Roman law and comparative law, in 1974. 1 The jurisdiction in which the transplanted legal rule or legal system originated is usually called a “ donor, ” while the jurisdiction in which the given legal rule or legal system is transplanted is usually called a “ recipient. ” 2 When legal transplant in an Asian jurisdiction was analyzed, the donor was usually a non-Asian jurisdiction or organization. 3 However, Japan has been engaging in several legal assistance activities in Asian jurisdictions since the mid-1900s, 4 while there is an evalua-tion about China under Jinping that “ Western donors now face competition only development but in legal assistance, 5 I the following","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"8 1","pages":"348 - 350"},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41580178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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