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The Paradigm Of The General Principles Of Good Governance As Examination Method Of Indonesian Presidential Impeachment Based On The Perspective Of Ethical Control, Nadir Nadir

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This study aims to reveal the paradigm of General Principles of Good Governance as a method of examination for Indonesian presidential impeachment based on the perspective of ethical control. This study employed the method of legal research. It was carried out to reveal principles and basis of (dogmatic or doctrinal) philosophy of positive law. In addition, the study is legal discovery in-concreto that is feasible to be applied to resolve a certain legal case. This study exposes that one of the legal reasons for the termination of the President of Indonesia is despicable deeds. It is determined as …

The Legal Aspect Of New Normal And The Corruption Eradication In Indonesia, Musa Darwin Pane, Diah Pudjiastuti

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Article 1 paragraph (3) of the 1945 Constitution mandates that Indonesia is the state by rule of law. Therefore, in carrying out the life of the people and of the nation, it must be in accordance with the applicable rules and regulations. The current presence and development of Covid-19 pandemic has resulted changes in political, economic, social, and cultural sectors. Paying attention to these developments, the Indonesian Government has issued various policies. The focuses of the policies are intended to manage the Covid-19 spread. The policies, among others, include social assistance programs during the Covid-19 pandemic, which has a significant …

The Role Of The Elections Supervisory Agency To Contend Hoax And Hate Speech In The Course Of 2019 Indonesian General Election, Fritz Edward Siregar

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Abstract

The Elections Supervisory Agency, in Indonesia known as Bawaslu (Badan Pengawas Pemilu), is the supervisor for all elections in Indonesia. The Agency has many roles, authorities, and obligations. One of their authorities is to oversee the activities of campaigns in various platforms, including the social media. The Agency has an authority to ensure and to keep the election participants not to violate campaign rules. They are obliged to ensure no misuse of social media, considering that the social media has been platforms to spread hoaxes and hate speeches–activities that can disrupt and undermine the ongoing democratic process. …

The Practice Of Presidential Succession In Indonesia, Dian Aries Mujiburohman

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

This study analyzed Article 8 of the 1945 Constitution of the Republic of Indonesia on the presidential succession in Indonesia. The 1945 Constitution clearly regulates presidential and vice-presidential election period for once in five years. However, the practice of presidential succession can be unpredictable. This article aims to elaborate the management of presidential succession in Indonesia. The study in this article employed normative research method by applying a statute approach. The finding of the study proves that based on Article 8 of the 1945 Constitution; there are four circumstances of presidential substitutions. They are decease, resignation, dismissal, and inability to …

An Endless Struggle Of Fighting Discrimination In The Name Of Human Rights Protection, Hernadi Affandi, Tarsisius Murwadji

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The Incident of George Floyd’s death reminds people of the peril of discrimination that still exists within the American society. The incident has triggered worldwide reactions from people who feel sympathy for the victim and reject racism. To eliminate racial discrimination, every modern society needs to remove any negative paradigm towards intergroup relation. In the context of the United States, the American Government has the responsibility to protect the rights of citizens from any forms of discrimination. That includes racial discrimination. In addition, people have to be reminiscent of the danger of racial discrimination in the modern era. The danger …

Recent Development In International Treaties Relating To Aviation: New Standardization Of International Air Law, Adi Kusumaningrum

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Globalization is identified with the development of treaties into national domain law. Initially, such treaties did not appear as legal regulations but as standard/harmonized-setting for member states. Since the establishment of Chicago Convention on Civil Aviation, 1944, treaties on aviation keep developing well both on the aviation operational technique and economic aspect. Those treaties nowadays have turned into the source of international aviation law. Treaty has been one of the bases of domestic law for almost nations in the world. As a result, the global requirements need to be adjusted into national law of states. States are bound both legally …

The Role Of The People In The Amendment Of The 1945 Constitution Based On Democratic Constitution Making: Future Prospects, Muhammad Nur Jamaluddin

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The amendments to the 1945 Constitution allegedly are not in line with the expectations of a democratic constitution. In fact, the role of the people in four amendments to the 1945 Constitution was very limited. The people who were involved in the amendment processes represented limited number of groups. Incidentally, only people with important and dominant powers were involved. The people were also not involved from the beginning of the amendment processes. Therefore, the role of the people in the amendments had not been carried out optimally. The results of the study show that the role of the people directly …

The Implementation Of Waqf To Actualize Economic Justice Based On Islamic Law, Helza Nova Lita

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Economic justice is one of the objectives of the implementation of Islamic economic system. Waqf is one of the instruments of Islamic economics. It is interesting to study the implementation of economic justice through waqf and how its regulation in Indonesia. This article employed normative juridical method. Based on the Article 22 of the Law Number 41 of 2004 on Waqf, the purpose of waqf is not solely for the purpose of ritual. It can also be used to realize economic prosperity. Based on these provisions, waqf can be managed for the economic empowerment of the people. This is …

New Face Of International Law From Western To Global Construct, Atip Latipulhayat

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The modern international law, not only imitates, but the substance is truly the European values and traditions. The European nations produce the norm of international law with a clear objective is to divide the world into "selves" (European nations) and "others" (non-European nations). This is exacerbated by European colonialism and imperialism, which allow their values and traditions to become hegemonic norms that ultimately produce the paradigm of "otherness" in international law. Non-European nations are "others", which are considered only as users of the European values. The “otherness” paradigm in international law is resulted from the universal claim of the European …

The Optimization Of Geographical Indication Protection In The Realization Of National Self-Sufficiency, Mieke Yustia Sari, Nuzulia Kumalasari, Sigit Nugroho, Yatini Yatini

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Any products of origin with their reputation, quality, and characteristics provide various benefits for their producers and consumers. The producers can have economic, ecological, socio-cultural, and legal benefits. The consumers can hold product quality and guarantee of origin, as well as legal guarantee for counterfeiting product. The study focused on the optimization of economic benefits in the protection of Geographical Indication. Producers do not immediately receive these benefits because they are related to the starting point for registration of different geographical indications among products. The purpose of this study is to formulate a strategy to maximize the benefits of geographical …

The Binding Force Of The Nuclear Disarmament Obligation Upon North Korea And Its Legal Implication Under International Law, Diajeng Wulan Christianti, Jaka Hananta Rizkullah

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Article VI of the 1968 Nuclear Non-Proliferation Treaty (NPT) requires all state parties to disarm nuclear weapon. Following its official withdrawal from NPT in 2003, North Korea maintains to develop its nuclear weapon and conducts several nuclear tests. Moreover, it even proudly declared as a nuclear state in its Constitution's preamble. It also argues that the nuclear weapon developments and tests were conducted within their territory and, currently, North Korea is not bound by any treaty prohibiting such developments and tests. The statement is strongly opposed by the international community, particularly their neighboring states: Japan and South Korea. This article …

Direct International Responsibility Of Non-Governmental Entities In The Utilization Of Outer Space, Neni Ruhaeni

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Article VI of the Space Treaty of 1967 defines non-governmental entities as legal concept. However, their responsibility in space activities is not defined comprehensively. The Treaty provides that the activity of non-governmental entities shall require authorization and continuing supervision from the appropriate state party to the Treaty. It suggests that non-governmental entities essentially are not the parties with direct international responsibility for their space activities. In other words, they have indirect international responsibility. On the other hand, commercialization and privatization of outer space have taken place intensively in the last two decades. It designs non-governmental entities as main actors in …

Collective Trademark As Alternative Of Joint Brand Protection For Dupa Harum Kekeran In Bali, A.A.A. Ngurah Sri Rahayu Gorda, Resti Anggreni

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

In Kekeran Village, Penebel District, Tabanan Regency, people’s understanding on the importance of legal protection of Intellectual property rights over brands are not well-established. In the village, Dupa Harum Kekeran, a kind of fragrance incense, is the product of a group of women. They use the Kekeran logo; and the logo has not been registered to the Directorate General of Intellectual Property Rights. Brand is a sign that enables customers to identify and differentiate products of companies. As a differentiator, it can also be a marker of an item’s reputation. The study employed an empirical legal research method by …

World Heritage Convention And Transnational Legal Process To Protect Indonesian Nature, Ary Aprianto

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The World Heritage Convention demands its states parties to strengthen mechanisms to conserve and preserve natural and cultural heritage consistently. A party to the Convention, Indonesia faces challenges to maintain the balance of economic, social, and environment considerations, pertaining to policies that affect natural heritage. Nevertheless, Indonesia remains committed to observe the Convention’s rules, including ones on sustainability and conservation. As analyzed through transnational legal process theory, the performance of this commitment helps to internalize the Convention’s rules into domestic context. It is suggested that Indonesia step up its interaction with the Convention’s actors in the hope of expanding the …

Juridical Study On The Optimization Of Cash Waqf Management By Islamic Banking In Indonesia, Teguh Tresna Puja Asmara, Lastuti Abubakar

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Cash waqf is an innovative instrument of waqf aiming to create social welfare. It is expected that cash waqf enables extensive public participation to support social welfare. However, in reality, cash waqf management in Indonesia has not yet resulted optimal benefit. Based on the Law Number 41 of 2004 on Waqf, three institutions carry out cash waqf management. They are the Indonesian Waqf Board as the collector and the developer, Nazhir as the manager, and the Islamic Financial Institution as the collector. The three institutions make the cash waqf management and development ineffective and not optimal. Based on the …

Critical Review Of Indonesian Government Legal Policies On The Conversion Of Protected Forests And Communal Lands Of The Indigenous Batak People Around Lake Toba, Imamulhadi Imamulhadi, Nia Kurniati

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The Development Plan of Sibisa Lake Toba Tourism Area as The National Strategic Area for Tourism by performing a land conversion on protected forests and communal lands had stirred up a problem dilemma regarding the resistance from indigenous people around Toba Lake. It is crucial to be questioned, whether the conversion policy of protected forests and communal lands by the Indonesian Government to develop Sibisa Danau Toba Tourism Area is in accordance with related laws and regulations? As the answer, it can be concluded that the mentioned policy opposes: Article 18b of the 1945 Constitution; Article 15 of the Law …

The Role Of The Financial Services Authority In The Legal Protection Of Privacy Rights In Connection With Personal Data Of Fintech Lending Debtor In Indonesia, Intan Audia Priskarini, Pranoto ., Kukuh Tejomurti

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The speed of disbursement of funds also makes fintech lending seems easy. Consequently, many people are interested to make credit. There are more than 900 alleged violations of law and human rights by online funding applications, including alleged violations of the privacy rights of the debtor’s personal data where billing is submitted not only to the debtor but also to all telephone contacts stored on the debtor’s cellphone without consent. This study is a prescriptive normative study through library research to look for secondary data by using primary, secondary, and tertiary legal materials and field researches. The study reveals several …

The Rule Of Law For The Right To Inclusive Education In Indonesia, Maya Indrasti, Faridah Jalil

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Indonesia is committed to guarantee the right to education for all citizens without exception. The commitment of Indonesia to Education for All (EFA) leads to the fulfillment of inclusive education policies. The people of Indonesia tend to understand inclusive education as education for people with disabilities. On the other hand, inclusive education has a broader meaning, which does not refer only to special education. Furthermore, it also covers education with special services. The essence of inclusive education is to remove barriers that limit all marginalized learners, to respect diversity and needs, to create patterns of education without discrimination, and ultimately …

Tenun Sasak In Indonesian Legal Discourse: From Cultural Heritage To Local Economic Booster, Dwi Martini, Budi Sutrisno, Kurniawan Kurniawan

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The Tenun Sasak, an Indonesian traditional woven fabric, requires proper legal protection to prevent and to solve various violations of laws. Currently, there is no single sui-generis law on the subject matter as it sporadically regulated in several laws. This article examines issues related to the perspective of Sasak community toward Tenun Sasak, existing regulation on economic and cultural aspects of Tenun Sasak in Indonesian legal discourse, and the expected legal protection form to preserve its economic and cultural values. To address these issues, the study applied socio-legal research methodology by combining primary legal material, literatures, and secondary legal …

Freedom Of Association Implementation Through Legal Protection For Worker Union In Response To Anti-Union Actions By Employers, Holyness Singadimeja, Atip Latipulhayat, M. Nurdin Singadimeja

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Indonesian labors have rights, either individually or collectively, to associate and to establish organizations. Union is one form of protection and enforcement of workers’ normative rights, on conditions that the rights are in line with, and does not conflict with, laws and regulations. The negative attitudes and perceptions of company management towards workers’ unions and legal norms still restrict the space for the unions. The situation enables the occurrence of anti-union actions by employers. It becomes increasingly difficult to stop because workers’ unions are often trapped by fanaticism that makes them difficult to unite perceptions regarding anti-union actions. This study …

The Responsibility Of The People’S Republic Of China For Alleged Human Rights Violations Against The Uighurs, Hashfi Taris

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Following the adoption of the Universal Declaration on Human Rights (UDHR) after the World War II, the international community has begun to try to respect and to protect human rights. Among the basic principles in the protection of human rights are the principles of equality and non-discrimination that every human being is considered to be equal without differences. Unfortunately, presently, many human rights violations against minority groups are triggered by differences of ethnicity, religion, race, or language. In 2018, the CERD Committee reported that there were arbitrary arrests of ethnic minority Uighurs in the Xinjiang region ofChina. A number of …

Terrorism As Socially Constructed Crime In Indonesia, Heru Susetyo

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Abstract

In the aftermath of Bali Bombing 2002, which is considered the biggest terrorist attack in Indonesia, the Indonesian government launched the so-called ‘war against terrorism’. Subsequently, the government established and applied laws on terrorism and formed a special counter-terrorism police squad: The Detachment 88. A state body that coordinates counter-terrorism measures is quickly established, the National Anti-Terrorism Agency (BNPT –Badan Nasional Penanggulangan Terorisme). Therefore, terrorism in Indonesia has been considered a ‘big and serious business’ since 2002. It also raises a serious question in defining and judging terror crime. Indeed, Indonesia has the law of terrorism since …

Asymmetric Decentralization And Peace Building: A Comparison Of Aceh And Northern Ireland, Ali Abdurahman, Bilal Dewansyah

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Abstract

This article compares the asymmetric form of decentralization model in the Aceh, Indonesia, and in the Northern Ireland, the United Kingdom, towards the process of peacemaking. In general, the decentralization models in the two regions have almost similar backgrounds due to prolonged religious conflicts. However, the devolution model in Northern Ireland is far more complex than Aceh’s, and closely related to other countries, that affect the constitutional status of Northern Ireland in the future. This is different from the Aceh government, which since the Helsinki MoU has remained a part of the Indonesia’s unitary form. On the other hand, …

The Characters Of Special Region According To The 1945 Constitution Of Republic Of Indonesia, Asep Bambang Hermanto, Anggara Suwahju

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The Republic of Indonesia, based on the 1945 Constitution, the second Amendment, recognizes the existence of a Special Region and its distinctive governance. Article 18B, Paragraph (1), of the 1945 Constitution reads, “The State shall recognize and respect entities of regional administration that possess a specificity or a distinctiveness that are to be regulated by law”. Previously, the governance of special region was also regulated in the first version of the 1945 Constitution that was stipulated on August 18, 1945. In addition, it is contained in other constitutions that were formerly effective in Indonesia: the 1949 Constitution …

The Prosecution In Trial In Absentia Of Money Laundering Case Resulted From Conventional Case, Rudi Pradisetia Sudirdja

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

In Indonesia, the provision of in absentia in the Money Laundering Crime Law raises problems if the crime act is originally conventional crime act. Conventional crime act should be handled based on the provisions of the Indonesian Criminal Law Procedures Code. On the one hand, the Money Laundering Crime Law regulates the provisions of the court in absentia and, on the other hand, the Indonesian Criminal Law Procedures Code does not recognize trial in absentia. This study covers the issue. To be precise, it reveals the possibility of a conventional crime act that is charged with the Money Laundering Crime …

The Implication Of The Globalization On The Pancasila-Based Principles Of Local Democracy In Indonesia, Seno Wibowo Gumbira, Jamal Wiwoho

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Abstract

The liberalism principles have influenced the whole life aspects of the nation and the state of Indonesia. On the political aspect, the principles influence the elections in Indonesia from the lowest (village head election) to the highest (presidential election) levels. The liberal principles are not in accordance with the principles of Pancasila as the national philosophy and the source of law (staatsfundamental norm) of Indonesia. The liberal democratic principles cause high cost democracy. They create the conditions of ‘free fight’ and ‘homo homini lupus’, as well as many potential corruption practices in villages. In addition, it …

The Dilemma Of Australian Pacific Solution: The Non-Refoulement Principle Versus National Security, Ninin Ernawati

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The Australian Government has issued various policies to deal with refugees. One of the policies is the Pacific Solution and it is considered as a manifestation of national security principles. On one hand, the policy against the non-refoulement principle, which is the central principle of the refugee convention and Australia is one of the states that ratified the 1951 Refugee Convention. Obviously, Australia should not violate the non-refoulement principle. On the other hand, Australia has experienced a dilemma between prioritizing its interests and fulfilling international obligation to protect refugees who entering its territory. This article discusses whether the national security …

Icc And Asean: Weakening Or Strengthening National Criminal Justice System?, Chloryne Trie Isana Dewi

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

The objective of the establishment of the International Criminal Court by the Rome Statute 1998 is to achieve global justice. The spirit to end impunity established the ICC to respond to four previous criminal tribunals that have been criticized as victor’s justice and selective justice. The ICC has material jurisdiction on the four most serious crimes: crimes against humanity, genocide, war crimes, and crimes of aggression. These crimes can be committed in any part of the world, including Southeast Asia. The latest case was crimes against humanity that lead to genocide of the Rohingya people in Myanmar, not to mention …

Legal Protection For The Indigenous Law Communities And Their Traditional Rights Based On The Verdict Of The Constitutional Court, Putera Astomo, Asrullah Asrullah

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Abstract

This study covers the problems related to the regulation of Adat (Indigenous) law communities. First, the Law Number 41 of 1999 on Forestry categorizes indigenous forests as State Forest. Therefore, the state has the authority to stipulate indigenous forests as long as the relevant Indigenous Law Communities are still existed and recognized. Second, the Law Number 27 of 2007 on Management of Coastal Areas and Small Islands provides opportunities for owners of large capital through Coastal Water Concession Rights (HP-3), but the substance does not provide space for coastal communities especially fishermen carrying out economic activities in coastal areas. …

The Implementation Of Legal Certainty Principles In The Reporting Process Of Debtor Bankruptcy Settlement By Curator To Supervisory Judge In Bankruptcy Practice, Holyness Singadimeja, Rai Mantili, Ema Rahmawati

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

After a debtor is declared bankrupt by Commercial Court, the debtor loses the rights to control and to manage assets. Debtor’s assets is under the management of curator, under surveillance of supervisory judge. Curator has important role in bankruptcy process since curator shall manage and maintain entire bankruptcy assets. Curator is expected to maximize value of bankruptcy assets to fulfill all debt obligations. Article 74 of the Law Number 37 of 2004 on Bankruptcy and Suspension of Payment, stipulates that curator must submit report to supervisory judge regarding the condition of bankruptcy assets and perform it quarterly. The report is …