Digital Commons Network^™

Model Draft Regulation On Cryptocurrency In India, Rahul J. Nikam

Hasanuddin Law Review

This article looks at the application of present Indian payment system policies and regulatory model on virtual-currency in India. In fact, simply banning cryptocurrency in India would not serve the purpose of legislature and Reserve Bank of India (RBI); rather it will boost cryptocurrency frauds in India due to absence of any law. The present article analysis shows that there is an ample scope within the present models and policies with necessary amendments to facilitate the regulation of virtual-currency in India. The analysis also suggests new model regulation on cryptocurrency which shall constitute the basic model regulations in India to …

Good Governance And Anti-Corruption: Responsibility To Protect Universal Health Care In Indonesia, Ratna Juwita

Hasanuddin Law Review

The establishment of universal health care marks a new momentum for the progressive realization of the right to health in Indonesia. The problem of corruption in health sector endangers the sustainability of effective and quality health care, therefore, Indonesia established an anti-fraud system to protect the universal health insurance fund. This research seeks to analyze the current anti-fraud system in universal health insurance through the lens of international law and principles of good governance. The sociolegal approach is chosen to study the relationship between the State party obligations to international law and the implementation of international law concerning universal health …

Environmental Pollution: Assessing The Criminal Liability Of Corporations, Hariman Satria

Hasanuddin Law Review

The Supreme Court sentenced PT Dongwoo Enviromental Indonesia (PT DEI) for disposing of hazardous and toxic wastes polluting the environment. Meanwhile, PT Adei Plantation & Industry (PT API) was charged with crime for the destruction of land damaging the environment. The research method used is normative legal research, which focuses on two approaches: case approach and conceptual approach. The results show that, first, PT DEI and PT API are charged criminally represented by the board as functioneel daderschap or directing mind and will. Second, PT DEI is charged with subsidized charges, while PT API is charged to alternative charges. Third, …

Broadening Of The Concept Of Obscenity In The Draft Of Indonesian Penal Code, Ali Rezky, Oheo Kaimuddin Haris

Hasanuddin Law Review

The reform of the Indonesian Penal Code (KUHP) is necessary to accommodate the noble values of Indonesian society. Therefore, Indonesian criminal law should reflect the basic principles, cultural values that live within the inner niches of Indonesian society as a living law. The inclusion of several forms of obscene acts that exist within the extended Draft Penal Code is a manifestation of the philosophical, sociological and juridical framework of the Indonesian society. The extension of the concept of obscenity in the Draft of Indonesian Penal Code is in accordance with the philosophy of the Indonesian nation that gives religious values …

Customary Law Of Larwul Ngabal In The Implementation Of Regional Autonomy In North Moluccas, Rosdalina Bukido, Nam Rumkel, Ismail Suardi Wekke, Elin Palm

Hasanuddin Law Review

The Kei Islands of Southeast Moluccas, like other parts of Indonesia, have a customary order and cultural diversity. The values of local wisdom existing in the Kei community, which is contained in the customary law of Larwul Ngabal, is a very important cultural social capital in the social integration of its society. The type of study was an empirical research with sociological-anthropological juridical approach. The results show that the existence of customary law of Larwul Ngabal supports the implementation of regional autonomy with full authority and reinforcement in local regulations based on local wisdom in Kei Island. The dominant factors …

Comparison Of Wildlife Protection Law Between Indonesia And The United States, Lusi Apriyani, Fahmi Yoesmar Ar, Marta Erwandi

Hasanuddin Law Review

Indonesia is known as one of the richest countries for its biodiversity. Plants, animals, and forest are very diverse in every region in Indonesia. Unfortunately, from time to time the numbers of biodiversity have been decreased along with the development of Indonesia. Nowadays, numbers of Sumatera Tigers and Orang Utan are not more than 400 since they were traded, captured, and killed in the name of economic development. Even wildlife habitat, forest, were converted to non-forestry use. Theoretically, Indonesia has Conser-vation Act which is the Law Number 5 of 1990 on Conservation of Biodiversity and Ecosystem in which providing protection …

The Anomaly Of The Village Government In Establishing Village Owned Enterprise, Busyra Azheri, Upita Anggunsuri

Hasanuddin Law Review

Village Owned Enterprise is an important part of the form of empowerment economic community at the village. Given, the urgency of the existence of Village Owned Enterprise, the government through the Regulation of Ministry of Villages, Disadvantaged Regions and Transmigration No. 5 of 2015 stated that one of the priorities of the use of village funds is for the establishment and development of Village Owned Enterprise. While the mechanism of establishment of Village Owned Enterprise is based on the result of village consultative meeting involving element of village government, element of village consultative body, and elements of community figures. The …

The Implementation Of Receivables Write-Off Of The State-Owned Banks In Indonesia, Henrikus Renjaan

Hasanuddin Law Review

This research reviews two issues: Firstly, it describes the imple-mentation of the receivable write-off of State-Owned Bank (BUMN Banks) in Indonesia, and secondly, it describes the relevance of the independence principles of directors and Good Corporate Governance to the implementation of receivables write-off of state-owned banks in Indonesia. This research uses normative and empirical juridical approaches. The normative approach includes research on the independence principles of directors and Good Corporate Governance to the implementation of receivables write-off of the state-owned bank, while empirical research is conducted to determine the process of claim abolishment by state-owned banks in Indonesia. The outcomes …

A Comparison Approach In Corruption Eradication: An Empirical Examination, Mispansyah Mispansyah

Hasanuddin Law Review

Corruption in Indonesia is increasingly structured and systemic. Worse yet, the corruption was fertile in sub-law enforcement agencies. This paper analyzes why corruption is so systemic in the legal system in Indonesia and how solution of Islam in eradicating corruption. This research was a normative-legal research. The results indicate that corruption occurred systemically in Indonesia due to secularization and capitalization in understanding the living system as embraced by the Republic of Indonesia, which resulted in bad law system both the substance, structure and legal culture, and bad people). The solution of Sharia Islam to eradicate corruption by creating a devotion …

Government Policies For Food Sovereignty: Disjunction Between Ideality And Reality, Fitrinela Patonangi, Aminuddin Ilmar, Irwansyah Irwansyah, Iin Karita Sakharina

Hasanuddin Law Review

The conceptualizes food security and food sovereignty as fluid and changing discourses that define the problem of hunger. The discursive geohistories of food security and food sovereignty in order to identify oppositions and relationalities between them. I argue that the interpretations of, and relations between, food security and food sovereignty vary by geography and scale, as well as by the conceptual and theoretical differences within the discourses themselves. When and where these discourses develop and emerge is central to understanding their oppositions and convergences. How scale is constructed within particular discourses is also important to understanding how they co-exist relationally …

The Marrakesh Treaty And Facilitating Access To Literary Works In The Field Of Knowledge For Blind People, Kholis Rroisah, Wendy Budiati Rakhmi

Hasanuddin Law Review

Freedom to gain knowledge, information and technology is very important by everyone including blind people which one realized the right of access to literary works through the Marrakesh Treaty 2013. Regulation about facilitating access to copyright of published works for blind people in Indonesia is still considered inadequate to give protection in the implementation of freedom to gain knowledge. This study applied normative juridical approach described descriptive-analytically. Accessibility to the scientific work of the blind people is a part of human rights which must be respected, protected and fulfilled by the State. The Government has an important role in the …

Indonesia’S Archipelagic Sea Lanes (Asls) Designation: Rights Turning To Obligations?, Dhiana Puspitawati

Hasanuddin Law Review

Indonesia is the first and only archipelagic state which has designated Archipelagic Sea Lanes (ASLs). However, such ASLs was only considered as a ‘Partial ASLs’ by the International Maritime Organization (IMO). This is due to the lack of the inclusion of all normal passage routes used for international navigation as required by Article 53 (4) of Law of the Sea Convention (LOSC). On the other hand, Indonesian national law stated that the rights of ASLP can only be exercised over the designated routes and this leave the undesignated routes under the innocent passage regimes, which is inconsistent with Article 53 …

Urgency Of The Right To Recognition For Identity’S Belief As A Part Of Human Rights, Winda Wijayanti

Hasanuddin Law Review

The right of recognition a belief is one of the basic human rights set forth in the Constitution. Population Administration Act as the executor of the constitutional mandate does not regulate of information column’s ”Belief” in an identity card (KTP-el) or a blank religion is a legal vacuum. Many debates occurred during the discussion and after the enactment of the Population Administration Act that only regulates the administration of population and issues between Religion and Belief as being very sensitive so that discussion of belief is considered not the domain of the Population Administration Act. Then, the absence of public …

Environmental Policy, Public Health And Human Rights: Assessing The Regional Regulation On Waste, Toar Neman Palilingan, Donna Okthalia Setiabudhi, Toar K.R. Palilingan

Hasanuddin Law Review

Everyone has the right to a good and healthy environment as part of human rights. Hence, to actualize the right to a good and healthy environment, the community or everyone has the right to environmental information related to the role in environmental management. The research is a socio-juridical. The results show that the management of human environment in Manado is implemented through the establishment and implementation of local regulations. The issuance of local regulations related to environmental law enforcement are local regulations on Environmental Protection and Management; Domestic Wastewater Management; and Waste Management and Cleaning Service Fees. However, the three …

Victimological Approaches To Crime Of Rape In Indonesian Criminal Justice System, Khudzaifah Dimyati, Angkasa Angkasa

Hasanuddin Law Review

Neglect of rape victims in the Indonesian Criminal Justice System implicates at least two things; first, the victim does not receive legal protection, and second, the decisions of judges do not fulfill the sense of justice. Neglect of victims in the Criminal Justice System cannot be separated from the theory, doctrine and legislation, especially criminal law or the Penal Code, Criminal Procedure Code and the Corrections Act, which is oriented merely to the perpetrators (criminal oriented) instead of victims (victim oriented). Regarding the conditions above, this study was intended to provide a solution of the problems so that victims in …

Implication Of Regulation Authorities On The Efforts To Accelerate The Eradication Of Corruption, Sukmareni Sukmareni, Elwi Danil, Ismansyah Ismansyah, Zainul Daulay

Hasanuddin Law Review

Investigation of corruption, as an extra ordinary crime is granted to the three institutions, namely the Police, Attorney General and the Indonesian Corruption Eradication Commission (KPK). The granting of authority to these three institutions aims to accelerate the eradication of corruption, not only detrimental to the finances and the economy of the country but has damaged the joints of life of the nation and state. The research is descriptive and uses a normative juridical approach. Aiming to find out, and analyze qualitatively the implications of regulating investigative authority over the eradication of corruption in Indonesia. The study found that all …

Lessons Learned From The British Exit From The European Union For Indonesia And The Asean Economic Community, Rahmi Jened, Betharia Noor Indahsari

Hasanuddin Law Review

A soft Brexit scenario will include an implementation period from the day the UK formally leaves the EU to 31 December 2020. During the implementation period, the UK will continue to be functionally treated as an EU member state and remain a party to EU international agreement. Associated with the ASEAN single market, should be considered the readiness of Indonesian regulations and legislations that in sectorial concerns at least three aforementioned legal instruments to be harmonized with the laws of the ASEAN countries. Important findings were shown by the research from the perspectives of business law, especially, capital investment law, …

Institutional Restructuring To Sustain Regulatory Reform In Indonesia, Wicipto Setiadi

Hasanuddin Law Review

There are numerous institutions in Indonesia that form regulations with its exceeding number of regulators may result in poor quality regulations. The outcome leads to regulations being over-regulated, overlapping, disharmony, and conflict. Hence, steps are needed to be taken to overcome in order for more improved and comprehensive regulation in Indonesia. A key factor to overcome poor conditions of regulation in Indonesia is by applying the good regulatory practice. Referring to the practice, there are several standards or principles that can be used as references. Apart from this, taking institutional restructuring into consideration, an establishment of a single institution to …

Bespoke Crowdfunding Regulation: A Boost Up To Startups And Smes In India, Rahul J. Nikam

Hasanuddin Law Review

The paper reviews securities regulatory requirements across the world and specifically in India that may be applicable or prohibiting Crowdfunding in India. The author argues that Indian financial and securities services regulations were not designed keeping in mind the 21st century requirements of industry. There is a regulatory gap in recognizing this emerging route of fund-raising business model addressing the needs of start-up as well as the Small and Medium Enterprises (SMEs) businesses by way of crowdfunding and cross-border crowdfunding in the form of equity and debt. Thus, paper is seeking to clarify how crowdfunding fits into existing rules if …

Dealing With Unexpected Circumstances: Judicial Modification Of Contract Under Indonesian And Dutch Law, Taufiq Adiyanto

Hasanuddin Law Review

After the conclusion of a contract, uncontrolled situations of the parties may lead to non-performance of the contract not only in the form of impossibility but also through excessive onerousness. This paper is seeking to compare regulations and cases concerning change of circumstances of the contract under the Indonesian and Dutch legal systems. The aim is to compare a legal remedy when the contract is imbalance and puts other party in burdensome condition to perform. Indonesian law still uses the all-or-nothing approach of termination and rejects the concept of subjective (relative) force majeure to modify a binding contract, although in …

Constitutional Court, Judicial Independence, And Efforts To Achieve Qualified Justice, Irfan Nur Rachman

Hasanuddin Law Review

Judicial Corruption is a disgrace to the world of justice and disaster for the justice seeker community. The judiciary is the third branch of state power after the executive and legislature. The judicial function is as a control and a counterweight to both branches of the power so as not to fall into arbitrary acts. In other words, the judiciary basically serves to implement the principle of checks and balances. However, if the justice functioning as a counterweight is actually involved in the vortex of judicial corruption that has plagued the judicial institutions, then what happens is the absence of …

The Roles Of Victims In The Icc: Victims’ Protection Or The Accused’S Fair Trial Right Violation?, Mahfud Jufri

Hasanuddin Law Review

The International Criminal Court (ICC) has provided the right to present victims views in the ICC’s proceeding. The objectives of this article are to identify to which extent the roles of victims in the ICC and to analyze whether victims’ participation would be a violation to the rights of a fair trial of the accused in the ICC or not. This is pure legal research meaning that the materials required in this article are available in libraries, archives and other databases. The article concludes that the victims, in the ICC, are allowed to participate and to seek reparation in accordance …

Arbitration: Understanding It In Theory And Indonesian Practice, Maskun Maskun, Achmad Achmad, Naswar Naswar, Fauziah P. Bakti, Amaliyah Amaliyah

Hasanuddin Law Review

Cross-border transactions have always attracted legal risks. Cross-border legal issues are emerging as a separate area of commercial risk that needs to be more precisely identified and better managed. Many cases of injury to multinational companies which would formerly have been pursued as a diplomatic claim by the nation state of the company are now resolved by arbitration between the company and the respondent state. Arbitration is one of dispute settlement bodies to resolve some issues particular trade, business, investment, and financial issues. Those issues are shaping the range and significance of the cross-border legal issue. Those issues also become …

Reconciliation Of Humanitarian Law And Human Rights Law In Armed Conflict, Muhammad Ashri

Hasanuddin Law Review

A common insight on human rights law as an instrument that aimed to protect the human dignity and values are often regarded to be separate from international humanitarian law. In relation to the norms, the difference between the two concepts related to the current conflict arise many debates. This paper reviews the common thread of the two international legal instruments. The connection between the two can be elaborated by explaining the concept; similarities and dissimilarities; and linking the basis for the establishment of legal instruments between human rights law and international humanitarian law. The results of research indicated that between …

The Values Of Pancasila In Electronic Banking Agreement, Andi Tenri Famauri

Hasanuddin Law Review

Pancasila as a state’s foundation (philosophische grondslag), its values have exist, inherent and predicted in daily life as a way of life; therefore the material of Pancasila in the form of these values is the Indonesian Nation itself. The research is a normative-legal research. The research approach uses a statute, historical and conceptual approaches. The results show that Pancasila as the State’s foundation (Philosophische Grondslag) is universal and open, especially in the life of nation; it can be used in all aspects of life. Changes in banking activities, from conventional to electronic banking (e-banking) cannot be avoided again. The elements …

Fake News As A Democratic Anathema: A Comparative Study Between India And Indonesia, Ishita Sharma, Mansi Aggarwal

Hasanuddin Law Review

The undeniably mind boggling media landscape has tossed fresh difficulties to an unsettled environment of media policy and that is why the market is denuded with fake news: scattered through social media intermediaries. Absence of effective laws for the same, have worsened the situation in recent past. Through this paper the researchers have tried to inspect how the propagation of fake news has upset the public sphere and potential arrangements that can be executed to check the plague of fake news in context of India and Indonesia, the prime democracies. There is boisterous discussion on fake news being utilized to …

The Constitutional Interpretation On The Natural Resource: Originalist Vs Non-Originalist Interpretation, Herdiansyah Hamzah

Hasanuddin Law Review

Judges served in constitutional court have freedom to utilize and elaborate constitutional interpretation method used to examine the law of the Constitution of the Republic of Indonesia year 1945 in accordance to their own understanding. Not only that the constitutional interpretation was not regulated in positive law, judges also have independency in making new law discovery (rechtsvinding). Therefore, the interpretation method used by judges in the constitution court is basically determined by each case displayed at the moment. It means that the future of constitutional interpretation regulated by the judges in constitutional court is depending on the lawsuit reported in …

Post-Asean Agreement On Transboundary Haze Pollution: How To Settle The Dispute Settlement?, Fadia Fitriyanti, Yordan Gunawan

Hasanuddin Law Review

Forest fire happened several times in Indonesia which impacting neighboring countries, such as Malaysia and Singapore. ASEAN tried to "heal" and prevent the possibility of similar events by signing the ASEAN Agreement on Transboundary Haze Pollution (AATHP) for its members. In line with that, this research examined the concern of the state responsibility principle and its dispute resolution as well as a mechanism under the Agreement in dealing with the transboundary haze pollution in ASEAN. The research conducted by using normative theory by using primary, secondary and tertiary legal materials, collected from library research. Data analysis uses statute approach and …

Work And Lives In Makassar Coastal Community: Assessing The Local Government Policy, Iin Karita Sakharina, Aidir Amin Daud, Muh. Hasrul, Kadarudin Kadarudin, Hasbi Assidiq

Hasanuddin Law Review

The Makassar City Regional Government formulated a policy that previously carried out Mapping conducted on the less prosperous Coastal community, so departing from the mapping results obtained then formulated a policy as in the development of human resources will be carried out in areas that most need to become a poverty pouch. Local government is the most relevant party to be responsible for increasing the budget. All components, which are responsible for improvement, for the Coastal community, and of course for all parties, who are responsible for improving the welfare of the Coastal community, each related agency provides a budget …

Upholding The Impartiality Of Judges In Judicial Systems, Agus Nurudin

Hasanuddin Law Review

Free and impartial justice is a characteristic and ideal of a constitutional State. In societies with a free and open judiciary system, individuals are permitted to challenge a judge's verdict, ability to remain impartial, and conduct. This article a doctrinal research with statute, comparative, and conceptual approaches. Meanwhile, data were analyzed descriptively, consisting of quotes. The results show that impartiality legal process (free from pressure, both physical and psychological and impartial) is a characteristic of a constitutional State. In the criminal justice system has received a full principle of free and impartial justice. At the lowest level, this principle in …