Jurnal Hukum dan Peradilan
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ITSBAT ON WIDOW\u27S MARRIAGE DURING IDDAH: OVERVIEW ON THEORY OF NORM HIERARCHY (Study of Stipulation Number 137/Pdt.P/2018/PA.Bm)
No full textThe presence of legal norm hierarchy theory can be used to describe legal events that cannot be resolved only by concrete legal norms. This paper will elaborate on this theory and its implementation to explain the legal considerations behind the acceptance of istbat of widow marriages during the iddah period as occurred in Stipulation Number 137/Pdt.P/2018/PA.Bm. By using qualitative methods and secondary data, this article concludes that the legal consideration of judges for accepting this case is the nescience, child protection, and absence of bad willing. The construction of legal considerations in this case represents the movement of selecting norms from al-ahkam al-far`iyyah to al-usul al-kulli and al-qiyam al-asasi
THE SECOND REVIEW REQUESTING CONTROVERS IN CRIMINAL CASES
Full text linkFormally, the review can be carried out more than once, based on the Decision of the Constitutional Court (MK) No. 34/PUU-XI/2013, which states that Article 268 paragraph (3) of the Criminal Procedure Code is contrary to the 1945 Constitution of the Republic of Indonesia and therefore has no binding force as law. This paper intends to discuss the second review\u27s philosophical, juridical, and sociological aspects. The Supreme Court, through SEMA No. 10 of 2009 as strengthened by SEMA No. 7 of 2014, confirms that a review of more than one time is only possible if there is an object of the case there are 2 (two) or more judicial review decisions that conflict one another. The restriction on review from being submitted only once is intended to provide justice to the victim, the community, and the state. The extraordinary effort remains within a measurable corridor and does not limit access to justice for the convict
ACQUISITION AND PRESENTATION OF DIGITAL EVIDENCE IN CRIMINAL TRIAL IN INDONESIA
Full text linkDigital evidence is not included in the types of evidence as stipulated in Article 184 paragraph (1) of the Criminal Procedure Code, but is regulated in Law No. 11 of 2008 concerning Electronic Information and Transactions as amended by Law No. 19 of 2016. However, it is often found that the submission of digital evidence is not only for criminal cases related to electronic information and transactions, but also for criminal cases that are not regulated in the Law on Electronic Information and Transactions. Furthermore, distinct characteristics of digital evidence compared to evidence in general require different acquisition and presentation method. Hence the writers intends to examine the method of acquisition and presentation of digital evidence in criminal trial and how judges evaluate digital evidence by examining how it was obtained and presented to the trial. This research is normative legal research, where the data sources include research on legal principles, legal system, and legal comparison. From the research, it was concluded that Indonesia already has laws and regulations governing the expansion of evidence to include digital evidence, Indonesia also has rules regarding the method of acquisition and presentation of digital evidence in the criminal trial. Therefore, judges are required to be able to evaluate the validity of digital evidence by observing the method of acquisition and presentation of digital evidence in the criminal trial based on applicable laws
JURIDICAL PROBLEMS ON COOPERATIVE BANK REGULATIONS ON INDONESIA\u27S ECONOMIC GOALS
Full text linkThis paper is concerned with the juridical problems on cooperative banks’ regulations on Indonesia’s goals stated in the 1945 Constitution Republic of Indonesia. The problems arise due to the absence of commercial banks in the form of cooperative banks. Furthermore, Indonesia has a minimum number of cooperative rural banks (BPR Co). Currently, OJK registered only 19 BPR Co out of 1545 BPRs (0.01%). The study aims to examine the juridical problems of cooperative bank regulation in Indonesia’s goals as stated in the 1945 Constitution. It is normative research, analyzed qualitatively and presented in a descriptive. The study reveals that the Government and the Financial Services Authority (OJK) have no intention of further regulating the legal form of Cooperative Banks. We can see it from the non-accommodation of Cooperative Banks in Law on Syariah Banking. In addition, we could also see it from the absence of regulation on Cooperatives Commercial Bank in OJK Regulation. Therefore, it is not surprising that no commercial banks in Indonesia are in the legal form of cooperative.Â
PROGRESSIVE READING OF CHILD CUSTODY RIGHTS IN INDONESIA: A GENDER JUSTICE PERSPECTIVE ON MARRIAGE LAW
No full textDisputes over child custody often occur after a divorce. Although the regulation on child custody has been regulated in the Marriage Law and Compilation of Islamic Law (KHI), it is allegedly not responsive enough to gender justice that gives child custody to one party based on the particular type genitals. So this triggers gender inequality and injustice. This article analyses the problem of establishing child custody descriptively analytically with a gender approach as a tool of analysis. This article concludes that the laws and regulations in Indonesia regarding the determination of child custody are still classified as gender-biased and have not been responsive enough to the issue of gender justice. Reciprocal interpretation model (qira\u27ah mubadalah), as a new approach in understanding the text, if applied in following the rules can be interpreted with the perspective of distinction between men and women who place women and men as human subjects that are whole and equal. Thus, both mothers and fathers alike have the same opportunities in child custody as long as they have qualified abilities in terms of childcare
UNCERTAINTY ON THE BANKRUPT PROCESS AS A LEGAL MEANS FOR SHARIA ECONOMIC DISPUTE SETTLEMENT (Case Study of BMT Fisabilillah)
No full textLaw No. 1 of 2013 on Microfinance Institutions (MFIs) has provided a legal basis for the operational activities of MFIs. The development of Sharia Microfinance Institutions/Baitul Maal wat Tamwil must be followed up with dispute resolution based on sharia principles. The intersection that occurs in the settlement of sharia economic disputes in bankruptcy cases is the mixing of conventional and sharia legal principles, which will cause legal uncertainty, the Court has absolute authority to handle sharia economic law cases. The bankruptcy decision by the Semarang Commercial Court in the BMT Fisabilillah case proves that at the empirical level, sharia economic disputes are decided by the Commercial Court which is formed in the general court environment. This article will analyze the position of BMT after the issuance of the MFI Law, the fall of the bankruptcy decision on BMT Fisabilillah. The research method is normative law by reviewing legal materials related to MFIs, Cooperatives, Bankruptcy and PKPU. The legal vacuum in bankruptcy law for sharia actors should be followed up by complying with the laws and decisions of the Constitutional Court so that bankruptcy disputes for LKMS become the domain of the Religious Courts, this is the main difference between bankruptcy based on positive law in Indonesia and Islamic law. This review of the bankruptcy case of BMT Fisabilillah is to understand that there is a blending in the substance of sharia economic law in the realm of general justice. This situation weakens the absolute authority of the established Religious Courts
ASEAN ATTITUDES TOWARD PATENT PROTECTION OF THE COVID-19 VACCINE VERSUS HUMANITARIAN INTERESTS
Full text linkThe global pandemic of the Covid-19 outbreak has caused problems in various aspects of life. Several countries have invented or made the Covid-19 vaccine. However, there are still many countries that have not been able to find or make the Covid-19 vaccine, including ASEAN countries. This raises questions that are the topic of discussion in this article, namely about ASEAN\u27s attitude towards 2 different interests between patent protection for the Covid-19 vaccine and humanitarian interests in overcoming the Covid-19 outbreak. Does Patent protection take priority or humanitarian interest take precedence? To discuss this topic, the authors use normative legal research methods based on secondary data or bibliography. The topic was discussed by comparing various legal provisions, both national and international, in order to obtain the main findings stating that patent protection also prioritizes humanitarian interest
THE REFORMULATION OF PARTIES DOMICILE REQUIREMENTS IN SMALL CLAIM COURT
Full text linkThe requirements of domicile (the same domicile of both parties) in small claim court still become an obstacle in a real application. The purpose of this study is: first, to analyze the linkage between small claim court with the principle of simple, fast, and low-cost. Second, to analyze the realization of the principle of simple, fast, and low cost in both parties\u27 setting domicile in small claim court. Third, to find the formulation of regulation criteria of both parties domicile in small claim court. This research is normative law research, which emphasizes the same domicile requirements on a small claim court. The research results showed that: first, the settlement of the small claim court is the realization of the simple, fast, and low-cost principle. Second, the simple, fast, and low-cost principles are not fully implemented in the arrangement of  the parties  domicile. Third, the reformulation of the setting of the domicile of the parties in small claim court is: the parties are domiciled in the same court jurisdiction; If the Plaintiff is not domiciled in the same jurisdiction with the Defendant, the Plaintiff can be called electronically and/ or Plaintiffs can file a lawsuit and appoint a power of attorney, the power of the incidental or representative located in the jurisdiction of domicile of the Defendant with a letter of assignment from the institution of the Plaintiff
REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES IN ELECTRONICS JUSTICE SYSTEM (E-COURT)
Full text linkThe emergence of e-Court as a modernization on trials enabled the judicial process to run online. The application allowed users, including Persons with Disabilities (PwD). Since the online system is essentially similar to the on-site one, the judicial process should consider reasonable accommodation. Moreover, considering Government Regulation Number 39 of 2020 concerning Reasonable Accommodations for Person with Disabilities (Regulation of Reasonable Accommodation in Judicial Process), the types of accommodations to enable PwD to use the online system must be clear. How the reasonable accommodations provided in e-Court is the issue of this research. The method of research used to elaborate on this issue is the normative juridical method. Patterns of problem approach are statute approach and conceptual approach. Meanwhile, the Analytical Descriptive method is used to construct the data. In this writing, automated online web accessibility tests showed that the medium percentage of the e-Court\u27s accessibility is used to bolder the analysis. This writing elaborated the accessibility of e-Court and the components of the information within which needed to be enhanced for providing reasonable accommodation for Persons with Disabilities, mainly in the form of service. It also touched on the Standard of Judicial Process involving Persons with Disabilities and the provision of the Companion and/ or the Translator for Persons with Disabilities during the trial process linked with the personal assessment and the participation of society
THE DYNAMICS OF RATIFICATION ACTS OF INTERNATIONAL TREATY UNDER INDONESIAN LEGAL SYSTEM
Full text linkThe Ratification Act is a legal product that states Indonesia\u27s commitment to an international treaty. The constitutionality of these laws has been tested before the Constitutional Court. In its decision, the Constitutional Court stated that the Ratification Acts is the object of judicial review as stipulated in article 24 C paragraph (1) of the 1945 Constitution. Even though there were two differences of opinion in the verdict on the ASEAN Charter Ratification Laws review, namely the Justice: Hamdan Zoelva and Maria Farida. The two judges categorized the Laws on the Ratification of International Treaties, not in the category of laws reviewed by the Constitutional Court. This decision explains the position of the Ratification Law in the Indonesian legal system and its future implications. This paper discusses the position of the Ratification Acts under the Indonesian legal system and the implications that will occur after the future Constitutional Court decisions on the development and relations of national law and international law. This writing uses secondary data and also primary, secondary, and tertiary legal material. This writing found the inconsistency of Indonesia in making ratification acts of International Law. It emerges that implication to the status of ratification acts. Moreover, The Constitutional Court decision tries to clarify ratification acts under the Indonesian legal system