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Protection of Human Rights Victims of Sexual Violence through Maqâsid al-Sharî'ah: A Case in Batu City Indonesia
No full textSexual violence can happen anywhere, and some perpetrators are usually related to the victim. A case of sexual violence occurred at Selamat Pagi Indonesia School in Batu city. The schoolmaster threatened the victim to comply with his wishes. A school environment, which should be a place to learn about science and ethics, has become a scene for sexual assault. This article aims to provide prevention and settlement alternatives for sexual violence through maqâsid al-sharî'ah methods. The data show that sexual violence at the school has occurred since 2009. This article includes empirical research using qualitative methods by describing and analyzing the data which is presented in descriptive text. The result of the research shows that the victims are incapable of fighting back due to manipulation in order to always be obedient and repay the perpetrators. The intimidation practice is in contrast to human rights and religious purposes, while the perpetrators exploit the power relation and manipulate religious narratives to commit the crime. Understanding religious purposes (maqasid alsharî'ah) provides essential tools to minimize human rights violations in the form of sexual violence. One is allowed to make prejudices and refuse to engage in an activity that may lead to sexual violence. The resistance corresponds with maqâsid al-sharî'ah which consists of safeguarding the soul, progeny, mind, religion, and wealth
Principle of Horizontal Separation in Registration of the Former Western Rights Land as the Object of Afwezigheid
No full textThe Job Creation Law affects some policy changes in agrarian sector. For instance, the promulgation of Government Regulation No 18 of 2021 (GR 18/2021) regulates that former western rights land are adjusted to state land. However, some former western rights land have not been converted until now. It results in legal uncertainty over the land status, especially land or building juridically belong to the person declared absent (afwezigheid) yet owned by legal subjects. This study aims to analyze the land rights registration of former western rights land after the Job Creation Law. Besides, it analyzes the implementation of horizontal separation principle in the land rights registration of former western rights land and buildings, that are the object of afwezigheid. This study is legal research applying statute, historical and conceptual approaches. Based on the study, people who possessed former western rights land are the main priority in applying for land rights regarding to GR 18/2021 article95. Meanwhile, those who only occupy the land and building have to get afwezigheid court decision of the former western rights land owner. Afterwards, they follow the object buying process with the principle of horizontal separation through Probate Office and submit land rights application at the land registry office
Copyright Legal Protection for Portrait on Trademark (Analysis on Cassation Decision Number 52k/Pdt.Sus-Hki/2021)
No full textLegal Protection within the scope of Copyright includes the protection of 2 (two) basic rights, Moral Rights and Economic Rights. The goal is that there are restrictions so anyone cannot use other's Copyrights commercially without permission from the Creator or His Heirs. In the case of the use Mrs. Meneer's Portrait in Trademark without written permission of the Heirs, it becomes debate whether the legal protection of the Portrait remains under the Copyright Law, or its Exclusive Rights have been lost because it falls within the scope of the Trademark Law. The research method used is normative juridical, by reviewing related laws and regulations, and conducting literature studies. The approach is carried out with Cassation Verdict No. 52 K / Pdt.Sus-HKI / 2022. The research concludes that the legal protection of Portraits in Trademarks remains based on the Copyright Law which adheres to the principle of Automatic Protection, so that the Exclusive Rights of the Creators remain. However, the Judge in His consideration determined the plaintiff's legal standing was not based on copyright principles. Based on this case, it is necessary to review the Copyright Law related to the principle of Automatic Protection of the Heirs in order to create justice and legal certainty
Penal Mediation as a Medical Dispute Settlement for Hospital Malpractice Cases in Indonesia
No full textPenal Mediation is an alternative form of case settlement that originates with the idea of restorative justice. Seeing a large number of medical personnel being convicted in malpractice cases (primum remedium), mediation in dispute settlement for malpractice cases in hospitals becomes the concept of victim protection, harmonization, and overcoming rigidity/ formality in the applicable system. Therefore, the purpose of this study is to find solutions to avoid the adverse effects of the Criminal Justice System with the concept of mediation as an effort to resolve malpractice cases in the future. This paper used normative legal research or library research with a statute, conceptual, and comparative approach. The nature of the research used in this study is descriptive-prescriptive. The author used content analysis. The findings of this study are meant to provide an alternative solution to punishment which should be a last resort (ultimum remedium) from law enforcement in the form of non-litigation settlement through mediation.
The Challenges of the Indonesian Government in Eliminating Gender Bias Practices: The Perspective of Kinship Systems in Indigenous Peoples and Regulations
No full textGender bias is a condition that indicates the existence of a preference for one of the socially and culturally constructed traits inherent in men and women. Gender differences in treatment harm certain genders. The losses mentioned are related to family and social status contexts. This paper is a normative study using a normative-legal approach, focusing on legal discrimination and observing gender practices in regulation through indigenous kinship systems and literature research. This paper aims to examine gender bias practices, and government efforts to prevent and overcome gender bias practices in Indonesia. Sexist practices are found in Indigenous peoples' lives, regulations, and government policies. Government efforts to prevent and control include ratification of international regulations and ratification in the form of legal instruments. However, other measures are needed from a prevention perspective such as: Political involvement of governments in socialization in the form of an improved understanding of indigenous peoples, the revision of rules that may lead t
Restorative Justice in Child Rape Perpetrators: A Case Study on Perpetrators With Intellectual Disability
No full textThe main role of probation officers is implementing restorative justice for the juvenile. However, a rape perpetrator with intellectual disability will encourage a different approach. Therefore, this study aims to explain how the application of restorative justice by probation officers on youth offenders with intellectual disabilities. The method used in this study is an empirical normative method. Primary legal materials were obtained through interviews with probation officers tasked with assisting in the investigation, prosecution, and examination in court, to assist in implementing decisions. Another source of legal materials was also obtained through the document of community research. Finally, secondary legal materials were obtained from various sources such as legislation, library books, and scientific journals. The results show three primary points. First, probation officers have realized restorative justice through their role in community research and mentoring. Second, probation officers provide recommendations for the rehabilitation of offenders. Third, probation officers reinforce other law enforcers such as police, prosecutors, and judges to conduct psychological diagnoses to ensure the child's condition. However, this study also finds that not all law enforcers can understand and handle children with intellectual disabilities
Controversy of Presidential Decrees in a State of Emergency in Indonesia: Case Study of The Decrees of President Soekarno And President Abdurrahman Wahid
No full textThe debate of the decrees of President Soekarno and President Abdurrahman Wahid regarding the constitutional and unconstitutional presidential decree in emergency constitutional law continues to be a controversy that does not end until now because it is still being discussed related to the situation. This paper discusses 2 (two) phenomenal decrees related to constitutional or unconstitutional in terms of emergency constitutional law. By using normative juridical research methods. The approaches used are the statutory approach, the conceptual approach, and the historical approach. This paper discusses 3 (three) main findings, among others: First, the Presidential Decree is de facto and de jure motivated by no recognition of political action or legal action; Second, the decree is formally regulated in Article 12 and Article 22 of the Constitution of the Republic of Indonesia because in the 1945 Constitution it is regulated that if the country is in a state of danger, the president can make decisions in accordance with the authority regulated by laws and regulations; and Third, The decree can be said to be unconstitutional because it is not in accordance with the Indonesian constitution. The decree is not regulated by Indonesian legislation so that formation is considered unconstitutional because it cannot be based on law. However, in the emergency constitutional law, this situation becomes normal because the emergency constitutional law does not use legislation as usual when the country is in normal condition
Critical Review of the Implementation of the Making of SOE as a Holding from Anti-Monopoly and Unfair Business Competition Perspective
No full textThis study aims to analyze the potential for SOE holdings to violate Law 5/1999. This study was conducted using a normative juridical method because the study was based on library research to obtain secondary data, sourced from primary, secondary, and tertiary legal materials. The specification of the research was descriptive-analytical because the author described the holding of SOE and then analyzed it to see if it has the potential to cause a violation of Law 5/1999. Data analysis using a qualitative juridical method. The results of the study indicated that the process of establishing an SOE holding based on Government Regulation Number 72 of 2016, so far has not been proven to have violated Law 5/1999. However, even though Article 33 of the Constitution of the Republic of Indonesia and Article 51 of Law 5/1999 intend SOE to be able to carry out a monopoly, the establishment of an SOE holding should still be able to guarantee the rights of the public to continue to do business in a healthy manner. The government needs to immediately stipulate regulations regarding governance in holding companies to maintain a competitive, healthy, and non-monopolistic business climate
The Role of E-Commerce in Escalation of Digital Economy in The New Normal Era Based on Law Number 27 of 2022 Concerning Personal Data Protection
No full textThe phenomenon of the spread of the Novel Coronavirus Disease (Covid-19) globally and thoroughly has transformed the trend of society, including the people of Indonesia. The tendency of individual behavior in buying and selling transactions is transformed from outside the internet network (offline) to inside the internet network (online). The level of comfort and convenience of the public in accessing and choosing various types of products online through electronic systems has given birth to new tendencies and habits in the e-Commerce landscape and has the potential to remain relevant even after the pandemic is over.. However, problems have arisen related to e-Commerce user data which has experienced many leaks so their activities tend to be insecure. If in the e-commerce transactions a sense of security and legal certainty is not guaranteed, it is feared that its development will stagnate. The research uses normative juridical methods and analytical descriptive types that explain the relationship between the Covid-19 health crisis and its impact on the tendency of people to conduct electronic buying and selling transactions where there is a shift in demand from physical retail to e-Commerce during the New Normal period. From this study, it was found that e-Commerce plays a major role in helping the community to remain active in online buying and selling transactions even in the post- pandemic period where legal protection is guaranteed for their activities. As for the legal regime that regulates the protection of personal data, it can help optimize the acceleration of e-Commerce with responsibility and principles of safety and security in serving consumers
Determination of Zero Rupiah Rate Against Non-Tax State Revenue for Intellectual Property Rights Services
No full textThe government continues to encourage the public to innovate to grow intellectual property by providing protection and legal certainty, including the application of Non-Tax State Revenue (Penerimaan Negara Bukan Pajak - PNBP) of Zero Rupiah. The problem is how to set a zero IDR Rupiah rate on non-tax state revenues for intellectual property services. The research method used is normative juridical. Provision of a non-tax state revenue rate of zero rupiahs determined based on certain conditions for intellectual property services such as social, religious, and state activities, and given specifically to underprivileged communities, students or /college students, Micro, Small and Medium Enterprises, or force majeure conditions, as well as activities that support the programs of the Ministry of Law and Human Rights, especially the Directorate General of Intellectual Property. Optimization of the budget or the achievement of PNBP in the Directorate of Intellectual Participation needs to be monitored and evaluated every year. Therefore, it is necessary to have a legal basis in the form of a Regulation of the Minister of Law and Human Rights concerning the Amount, Requirements, and Procedures for the imposition of Non-Zero Rupiah State Revenue Rates for Intellectual Property Services by first through the approval of the Minister of Financ