PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)最新文献

{"title":"Tenun Sasak in Indonesian Legal Discourse: From Cultural Heritage to Local Economic Booster","authors":"Dwi Martini, Budi Sutrisno, Kurniawan Kurniawan","doi":"10.22304/pjih.v6n3.a8","DOIUrl":"https://doi.org/10.22304/pjih.v6n3.a8","url":null,"abstract":"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 material to gain clearer de jure and de facto perspective. For Sasak community, the traditional woven fabric is not only body cover. It contains more depth values such as inter-generation cultural inheritance, reflection of socio-cultural values, and source of livelihood. In Indonesian legal discourse, Tenun Sasak is regulated in certain laws and regulations ranging from Intellectual property (IP) and others. The expected forms of laws to protect the economic and cultural values consist of establishment of database, sui generis law, and local law on the subject matter. It can be concluded that to protect and preserve the economic and cultural dimension of the subject matter, a holistic legal arrangement is required both inside and outside the IP system.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133228652","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}

{"title":"World Heritage Convention and Transnational Legal Process to Protect Indonesian Nature","authors":"Ary Aprianto","doi":"10.22304/pjih.v6n3.a4","DOIUrl":"https://doi.org/10.22304/pjih.v6n3.a4","url":null,"abstract":"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 internalization of the Convention since it will help Indonesia to design better nature conservation and preservation mechanism.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133179466","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}

{"title":"Freedom of Association Implementation through Legal Protection for Worker Union in Response to Anti-Union Actions by Employers","authors":"Holyness Singadimeja, Atip Latipulhayat, M. N. Singadimeja","doi":"10.22304/pjih.v6n3.a6","DOIUrl":"https://doi.org/10.22304/pjih.v6n3.a6","url":null,"abstract":"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 aims to study the implementation of labor union legal protection by the government facing anti-union actions by employers. The study employed normative juridical, starting with a description of positive laws related to the problem under study. Subsequently, an analysis was carried out by using relevant legal concepts and theories, synchronizing regulations, examining applicable laws in concrete and legal principles as secondary data support. The primary data was obtained through interviews. The results show that the implementation of legal protection for labor unions could not be carried out according to the purpose of the regulation. Therefore, law enforcement on the anti-union actions could not be performed optimally. The National Police, labor inspectors, and civil servants with criminal investigator power were unable to handle anti-union actions. Civil Servants with criminal investigator power in the field of workforce possesses authority based on the law to conduct investigations but mostly, they have not been able to conduct the duty properly. The evidence is the low number of employers that are processed legally based on report to the court.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"265 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120913091","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}

{"title":"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","authors":"I. Priskarini, Pranoto Pranoto, Kukuh Tejomurti","doi":"10.22304/pjih.v6n3.a7","DOIUrl":"https://doi.org/10.22304/pjih.v6n3.a7","url":null,"abstract":"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 results. Firstly, although the Regulation of the Financial Services Authority Number 77 of 2016 has been published, fintech providers registered in the Financial Services Authority have not upheld a legal culture to protect debtors on the use of debtors’ personal data. Secondly, fintech lending makes it easier for Indonesian people to have a positive impact due to the speed of the application fund disbursement system but this convenience is not matched by the knowledge of debtors who do not read and pay attention to the contents of electronic contracts. Thirdly, as long as the Personal Data Protection Bill has not been ratified, as a preventive measure, the Financial Services Authority can take some alternative roles, namely Financial Services Authority should be involved in reviewing electronic contracts made by fintech lending and giving feasible recommendations on electronic contracts made by parties and standardize electronic contract contents so that each fintech lending company has the same and clear contract contents set by the Financial Services Authority.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"176 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125643961","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}

{"title":"Asymmetric Decentralization and Peace Building: A Comparison of Aceh and Northern Ireland","authors":"Alim Abdurahman, Bilal Dewansyah","doi":"10.22304/pjih.v6n2.a3","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a3","url":null,"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, in terms of governmental matters, decentralization in Aceh reflects a reduction in their special authority, with a pattern of division of government functions that is almost similar to the division of functions in the ordinary regional government. It is in contrast to the affairs of Northern Ireland’s government concerning matters that are categorized traditionally as the exclusive affairs of the central government in a unitary state, such as security matters. This provides a lesson for Indonesia that the issue of federalism in Aceh is indisputable and the Northern Ireland case reinforces the insight that federal state and unitary state have some degrees of similarity.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115707297","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}

{"title":"The Implication of the Globalization on the Pancasila-Based Principles of Local Democracy in Indonesia","authors":"S. Gumbira, Jamal Wiwoho","doi":"10.22304/pjih.v6n2.a8","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a8","url":null,"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 can lead to the most worrying issue –the damage of values of Pancasila.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"242 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132498318","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}

{"title":"ICC and ASEAN: Weakening or Strengthening National Criminal Justice System?","authors":"C. Dewi","doi":"10.22304/pjih.v6n2.a10","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a10","url":null,"abstract":"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 extra judicial killings as a policy of drugs war and towards journalist in the Philippines. However, none of the case has been brought to justice. In view of that, this study examined challenges and opportunities toward the implementation of Rome Statute 1998 in Southeast Asia. Furthermore, it also observed possible impacts in implementing Rome Statute 1998 in Southeast Asia. The existing national legal instruments related to ICC can support the implementation of Rome Statute 1998 in Southeast Asia and achieve the objective of ICC to end impunity and to reach global justice. Nevertheless, challenges come from the governments of Southeast Asian states. They are reluctant to bring justice and fear that ICC can violate national sovereignty. Interestingly, the Philippines just withdrew itself as a state party to ICC since 2018. Based on the basic principle of complementarity, the ICC is proposed to strengthening national criminal justice of a state. Therefore, the ICC should not be considered as a threat to national sovereignty of a state.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129446119","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}

{"title":"The Dilemma of Australian Pacific Solution: The Non-Refoulement Principle Versus National Security","authors":"N. Ernawati","doi":"10.22304/pjih.v6n2.a7","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a7","url":null,"abstract":"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 principle is contrary to the non-refoulement principle; and how Australia can accommodate both principles without neglecting the rights of refugees and still be able to maintain their interests. This article also reviews how Australia can implement policies based on national security principle when it has to face international obligations–in this case, the non-refoulement principle. This research concludes that the national security and the non-refoulement principle are basically contradictory. However, Australia can accommodate these two principles by counterbalancing actions, such as the establishment of national laws that still highly consider humanitarian standards contained in the non-refoulement principle. Australia has the right to implement number of policies based on its national law, while that the same time Australia cannot ignore their international obligation to protect refugees in accordance with the 1951 Refugee Convention that they have ratified. Reflecting on some previous policies, this study concludes that Australia has not been able to accommodate both principles.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116269440","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}

{"title":"The Urgency of Non-Precluded Measures Clause in Indonesian Bilateral Investment Treaty","authors":"S. Sefriani","doi":"10.22304/pjih.v6n2.a2","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a2","url":null,"abstract":"The legitimacy crisis of the Bilateral Investment Treaty (BIT) within the international community was caused by the increasing regulatory disputes before the Investor-State Dispute Settlement (ISDS) forum. It encourages Indonesia to discontinue several BITs, to review and to make new BIT models for Indonesia. This article aims to analyze the urgency of the non-precluding measures (NPM) clause in the new BIT Model of Indonesia to balance the interests of investors and the interests of Indonesia as the host state, considering that to date the existing BIT content is not balanced. The BIT provides so much protection to investors and, vice versa, weighty obligations to the host country. This study employed descriptive analytical method. The study concludes that the NPM Clause is very important in the new Indonesian BIT Model. At least, can be based on five arguments. First, the NPM clause will transfer risk from the country to foreign investors in situations of extraordinary threats. Second, the NPM clause will limit investor protection in certain situations. Third, the NPM clause will provide greater flexibility to Indonesia as the host to regulate its investment policy to achieve sustainable development to realize the people’s welfare, labor rights, public health, safety environment, public morals, and order. Fourth, the NPM clause is important for self-recovery during international financial crisis. Fifth, lastly, the NPM clause will balance the protection of both investors and Indonesia as the host state.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126672711","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}

{"title":"Terrorism as Socially Constructed Crime in Indonesia","authors":"Heru Sesetyo","doi":"10.22304/pjih.v6n2.a4","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a4","url":null,"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 2002, yet the definition is not very clear. Even in international forum, there is no single and approved definition of terrorism. For instance, an armed group who attacked civilians in Central Sulawesi was named terrorists by the state. On the other hand, a group of militias who attacked and held hostages in Timika, Papua was labelled as an armed criminal group. In Jakarta, there were some bomb threats during 2015 and 2017. Nevertheless, the law enforcement agencies have never named them as ‘terrorists’, although their actions deserve to be called as ‘lone-wolf terrorism’. This paper aims to identify the social construction of terrorism. Terrorism is a term that is used regularly by news media and politicians. Whether its application is impartial or biased is fundamental to a debate. In a society where, international terrorism monopolizes news media and political discussion, there is no greater need than to analyze the boundaries of the term ‘terrorism’ construction within social processes. One of the serious problems involving terrorism in Indonesia is to define an offense as terrorism. The laws of terrorism are existed. The judgment and conviction to terrorism suspects also have been made in various jurisdictions. Yet, the types of offenses constituted as terrorism are still unclear. Ordinary people, media, opinion makers, and law enforcement officers have socially constructed terrorism and have their own perceptions of terrorism. This condition leads to law uncertainty and, to some extent, it leads to victimization and stigmatization of innocent people because their appearances and social environments have been associated to terrorism. This study employed two approaches: Social construction and guilt by association theories.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130050901","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}