Jurnal Hukum dan Peradilan
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Comparison of Legal Maxims in Common Law and Islamic Law: Similarities and Differences in Dispute Resolution
Full text linkThis study compares legal maxims or legal principles in common law and Islamic law, focusing on the similarities and differences in applying these rules in dispute resolution. The legal maxim in these two legal systems is a fundamental principle that guides judges and legal practitioners in interpreting legal rules and deciding cases. In common law, legal maxims develop through precedent and jurisprudence. In contrast, in Islamic law, this rule comes from religious texts such as the Qur\u27an and Hadith, as well as the development of law by scholars. The normative-comparative approach method is used to analyze the similarities and differences of the maxim legal in both legal systems. This method helps identify important points of similarity and differences and reveals ways in which the two legal systems can complement each other. This comparative study concludes that Common Law and Islamic Law originate from different foundations, secular precedent versus divine revelation; they share a fundamental commitment to justice, embodied in maxims like "no punishment without law." Their paths diverge in methodology: Common Law prioritizes legal certainty through precedent, while Islamic Law seeks balance through moral objectives (maqasid-al-shari\u27ah). Significantly, in pluralistic systems like Indonesia, these traditions converge pragmatically. Courts creatively blend principles, merging pacta sunt servanda with al-`ādatu muhakkamatun to deliver legally sound and contextually just rulings. This demonstrates that the future of effective dispute resolution lies not in choosing between systems, but in their thoughtful integration to achieve substantive justice
The Role of Active Judges: A Comparative Study of Civil Cases and Administrative Disputes
Full text linkThe active role of judges is essential in ensuring the fair resolution of administrative and civil disputes. In the Administrative Court, judges are required to act under the dominus litis principle, which empowers them to take proactive steps in clarifying facts, guiding proceedings, and balancing the unequal positions between individuals and government authorities. This active role aims to uphold justice and protect citizens from administrative actions that violate legal norms or principles of good governance. In civil cases, by contrast, judges generally adopt a passive stance in accordance with the audi et alteram partem and party autonomy principles, although limited judicial intervention may still be necessary to safeguard fairness when power imbalances arise. This study employs a normative legal research method using statutory and conceptual approaches to examine the active judicial role\u27s legal framework and theoretical justification. Drawing on theories of legal certainty, judicial activism, and due process of law, the study finds that while judicial activism is crucial to achieving substantive justice and transparency, it must operate within defined limits to preserve impartiality and procedural balance. Thus, the proper calibration of judicial activism serves not only to protect the integrity of the judicial process but also to ensure that justice remains both fair and effective in practice
Drafting Laws for The Lifeless: A Legal Framework for Criminal Liability and Punishment for Artificial Intelligence
Full text linkIn this modern era, Artificial Intelligence (AI) has penetrated almost every aspect of life, offering tremendous benefits to humanity. However, like two sides of a coin, AI also presents serious risks, including its use in criminal act. For example, AI-powered lethal autonomous weapons can select targets and make killing decisions without human involvement. Similarly, autonomous cars can cause fatal accidents. A crucial question arises in these cases: Who should be held accountable? Is it the developer, the owner, the user, the supervisor, or even the AI itself? In criminal law, liability requires two main elements: actus reus (wrongful act) and mens rea (malicious intent). However, is it possible for AI to have malicious intent? Can AIs be treated as legal subjects worthy of punishment? This article critically examines the legal dilemma and offers three conceptual models to enable AI criminal liability. In addition, it analyses the possibility of imposing sanctions, such as imprisonment and fines, on non-human entities, as well as the relevance of theories of punishment in the context of AI. An analysis of the benefits and risks of punishing AI is also comprehensively outlined as an alternative to other solutions
National Strategic Projects and Compensation Issues in Land Acquisition in Indonesia: A Justice Theory Perspective
Full text linkThe compensation issue is still one of the factors inhibiting development in Indonesia. The government must develop to establish a flourishing society, as required by Pancasila and the Constitution. The government implements National Strategic Projects and initiatives designed to foster growth and equitable development, increase employment opportunities, and enhance community welfare. Limited land control by the government means that the government also needs land owned by the community. When it comes to inland procurement for development, the community whose land rights are impacted by the national strategic project is nearly always unhappy, especially regarding loss compensation. The most complicated and contentious part of taking land for public use is usually the compensation for losses that arise when the government purchases a piece of land. The limited government budget for building infrastructure and restrictions on regulations for using other state finances have caused the government to look for forms and amounts of compensation that can provide a sense of fairness and worth to the community without burdening state finances. Upholding respect for human rights is acknowledged as a form of protection offered by the state to its citizens in Indonesia, a country that upholds the rule of law. This protection extends to situations where the state takes over community land to be used for development in the public interest. The strategies put out to resolve the land acquisition dispute are grounded in the idea of social justice, which is still relevant and evolving in the Indonesian culture of society
Litigation of Sharia Economic Bankruptcy: (Indonesian Bankruptcy Law Perspective)
Full text linkThis study aims to gain a deep understanding of whether the issue of debts in the scope of sharia economics has been well accommodated in bankruptcy and debt settlement through the Commercial Court based on the Bankruptcy Law. This is normative legal research through literature study and case study, and it is enriched with interviews with sources at the Supreme Court. The results show that there has been an overlap in the court\u27s competency to adjudicate based on applicable laws and regulations. There is no synchronization between the court\u27s competency based on the Bankruptcy Law and based on the Religious Courts Law, especially regarding the settlement of debts within the scope of sharia economics. In the case study on the Commercial Court\u27s decisions, it is known that its final settlements were made without sufficient consideration of sharia economics compliance principles. The Supreme Court, as the holder of judicial power, has attempted to fill the legal vacuum with its policies to synchronize so that the judicial process can run smoothly. Another solution to resolve the overlapping judicial competency arising from the Bankruptcy Law and the Religious Courts Law is to file a judicial review with the Constitutional Court, even though dilemmatic. The remaining issue is that the settlement of debt within the scope of sharia economics is still decided in the Commercial Court, not the Religious Court. The ultimate solution is to propose an amendment to the Bankruptcy Law to accommodate settlements within the scope of sharia economics
Juridical Interpretation of Non-Fully Executable Judgments in The Administrative Court
Full text linkJudgments that cannot be fully executed are frequently encountered in civil service disputes. Rehabilitation obligations are often hindered by changes in circumstances, which have consequently given rise to the notion of compensation. Determining compensation amounts also faces challenges, particularly due to tensions between legal norms and practical realities. This study pursues two main objectives: first, to examine the criteria that characterize judgments that cannot be fully executed, and second, to describe the implementation of compensation as a substitute mechanism in such cases. The research adopts a normative legal methodology utilizing statutory and conceptual approaches. The findings lead to two primary conclusions: first, judgments that cannot be fully executed are identified in cases where rehabilitation obligations in civil service disputes face specific obstacles, including (1) the plaintiff’s legal status no longer qualifying them to return to their former position; (2) the plaintiff’s position having been filled by another person; and (3) changes in the organizational structure. Second, the implementation of compensation is based on actual losses suffered by the plaintiff resulting from a State Administrative Decision that was declared invalid by the court. The amount of compensation is determined through an agreement between the plaintiff and the defendant. If such an agreement cannot be reached, the chief judge of the administrative court is authorized to determine a fair amount of compensation in accordance with the principles of propriety and reasonableness. The study highlights the need for procedural reform to address the gap between legal provisions and their practical application in executing administrative court judgments
Aspect of Justice in The Application of "Impoverishment" Concept in Asset Seizure Resulting from Corruption Offenses
Full text linkThe main question and context of the discussion is whether the concept of impoverishment through asset confiscation in corruption cases in Indonesia fulfills the aspect of justice for defendants. This research will play a role in providing legal boundaries and certainty regarding the concept of impoverishment. This research used normative legal research. Normative legal research focuses on analyzing legal rules, principles, and doctrines to understand how the law should be, rather than how it is practiced. This research showed that the concept of impoverishing perpetrators of corruption crimes is interpreted as the confiscation of wealth/assets belonging to perpetrators of corruption crimes, which are the proceeds of corruption, and carried out in accordance with applicable regulations. Asset confiscation from perpetrators of corruption crimes must be implemented with legal measures that do not disregard the sense of justice and without disregarding or respecting the rights of the defendants and the property rights of others unrelated to the corruption case being handled, so the execution in the form of asset confiscation that can provide a sense of justice as it is conducted in a civilized manner and based on humanitarian values. Confiscating the wealth of defendants in corruption cases must be carried out proportionally, and the confiscation of individuals suspected of committing criminal acts of corruption must be upheld and must not violate constitutional principles
Strengthening Courtroom Integrity in Indonesia: Addressing Technological and Security Challenges Through Global Best Practice
Full text linkMaintaining order in the courtroom is essential for ensuring fair and efficient judicial proceedings. However, Indonesian courts face increasing challenges in managing courtroom decorum due to evolving disruptive behaviors driven by technological advancements and societal changes under the 4th Industrial Revolution. This research examines the current state of courtroom management in Indonesia, identifying gaps such as unauthorized electronic recordings, inadequate systems for remote trial decorum, and insufficient courtroom security measures. Using a literature-methods approach, the study analyzes incident reports, judicial practices, and international best practices from countries like Germany, Japan, and Canada. Findings reveal significant weaknesses in the regulation of technology use, courtroom security frameworks, and the public perception of traditional practices. The research concludes that Indonesia\u27s judiciary must adopt forward-thinking strategies to enhance courtroom management and public trust. Key recommendations for the Supreme Court include regulating electronic device usage, establishing a court police system, introducing summary procedures for in-court offenses, and revising the "all rise" practice to align with cultural sensitivities. These measures ensure a resilient, adaptive judiciary prepared to address current and future challenges effectively
Access to Justice: An Effective Pretrial Model to Guarantee the Right to Defense for Suspects in Indonesia
Full text linkThis paper examines the ineffectiveness of the pretrial mechanism in Indonesia in guaranteeing the right of suspects to submit and request examination of exculpatory evidence during the investigation stage. Although the Criminal Procedure Code (CPC) provides a legal basis for this right, no rules guarantee that investigators will conduct such examinations, as evidenced by several cases in which investigators ignored such requests. This study is normative legal research, employing a statutory, conceptual, and comparative approach. It compares the Brady Rule in the United States, which requires prosecutors to disclose evidence favorable to the defendant, and the Dutch model of the \u27rechter-commissaris\u27, which grants judges the authority to oversee investigative actions actively. The results of this study recommend expanding the authority of pretrial judges to order investigators to examine mitigating evidence based on requests from the suspect or their legal counsel. This reform is important to realize the principles of fair trial, favor defensionis, and equality of arms, as well as to strengthen constitutional protection of human rights and the values of Pancasila. Preliminary hearings, as conceptualized here, can address the injustices that remain unresolved despite decades since the enactment of the CPC in 1981
Comparative Analysis of Judicial Statistics Reform: Insights From The US, Canada, and The UK
Full text linkIn the context of modern judiciaries, the effective utilization of judicial statistics is pivotal for informed decision-making and policy formulation. Indonesia, like many nations, faces challenges in the dissemination, content coherence, raw data sharing, historical analysis, and collaborative efforts concerning judicial statistics. This research addresses these gaps by proposing innovative solutions to enhance the efficacy of judicial statistics in Indonesia. The primary objective is to transform the existing landscape by advocating for the adoption of web-based platforms, restructuring content and format, resolving raw data dissemination challenges, emphasizing the significance of historical data, and promoting collaborative efforts between research institutions and court data centers. The purpose is to provide a comprehensive framework that not only addresses current issues but also lays the foundation for sustainable, transparent, and informed statistical practices. This study employs a qualitative approach through a comparative analysis, examining existing literature, policy documents, and judicial statistics practices in the US, Canada, and the UK. By contrasting these systems with Indonesia’s framework, the study identifies best practices and potential improvements for judicial data management. The research presents a multifaceted approach to enhance the efficacy of judicial statistics in Indonesia. By transitioning to web-based platforms, ensuring content coherence, addressing raw data dissemination challenges, emphasizing historical data analysis, and promoting collaborative efforts, the proposed framework offers practical solutions. Implementation of these strategies can significantly improve the accessibility, accuracy, and relevance of judicial statistics. Consequently, this approach not only benefits researchers and policymakers but also fosters transparency and accountability within the Indonesian judiciary, paving the way for evidence-based decision-making and informed policy formulation in the legal sector