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Procedural Justice or Substantive Justice: Review of Constitutional Court Decision Number: 91/Puu/Xviii/2020
No full textThe formal test application of the Omnibus Law of Job Creation through the Constitutional Court Decision Number:91/PUU-XVIII/2020, in its statement the Constitutional Court declared its unconstitutional conditional. The Constitutional Court decision was made because considering the need to balance the formal and the strategic objectives of the establishment of the Job Creation Law, the formal condition is procedural justice while the strategic objective is substantive justice. The decision raised the question of whether the verdict was oriented to procedural justice or substantive justice. Research question of the study was what is the Orientation of Justice of the Constitutional Court Decision Number:91/PUU-XVIII/2020? This study is on normative law research. The postpositvism paradigm used a qualitative approach through the in concreto study of and court behaviour. The results of the study are the Constitutional Court Decision Number:91/PUU-XVIII/2020 through its considerations, opinions and verdicts in the main application oriented to procedural justice. It can be concluded that The Decree of Constitutional Court Decision Number:91/PUU-XVIII/2020 is oriented to procedural justice. The study recommends, in line with the principle of justice of John Rawls, the basic legal values of Gustav Radbruch and the social justice value of Pancasila and the 1945 Constitution of the Republic of Indonesia, formal test on Omnibus Law of Kob Creation should have been rejected, and made substantive justice orientation of the Constitutional Court Decision Number:91/PUU-XVIII/2020
Principles of Selective Immigration Policy in Relation to Visa Free Entry for Tourism Purposes
No full textTourism has an important role in enhancing the economic growth of a country. As a country with growing tourism industry, Indonesia is trying to increase foreign tourist visits by rolling out a visa-free policy. However, the visa-free policy has not yet fully provided benefits. In practice, this policy triggers the occurrence of transnational and international crimes, the rise of illegal foreign workers and the large number of foreigners who abuse their residence permits. The purpose of this research is to analyze the visa-free policy from the perspective of selective policy theory. The research method is normative legal research with a statutory approach and a conceptual approach. The results of the study show that the visa-free policy as contained in Presidential Regulation Number 21 of 2016 is not fully based on the theory of selective policy. In conclusion, the visa-free policy cannot be implemented optimally because the formulation of this policy does not represent the theory of selective policy. Consequently, the implementation of visa-free policy generates various matters that have an adverse impact on Indonesia. In order to overcome this problem, it is urgent to evaluate and improve the visa-free policy and to make this policy truly based on the theory of selective policy. Thus, the visa-free policy will be very selective in choosing and determining countries that can receive a visa-free policy
Power Oligarchy: The Game of Cartel in Cooking Oil Scarcity
No full textAllegations related to the cartel arise every time Indonesia experiences a shortage of cooking oil. The study aims to discuss the causes of the scarcity of cooking oil in Indonesia. Is it because of Permendagri Number 06 of 2022 or because of a cartel or is it caused by an artificial scarcity made by a syndicate? And whether this cartel and scarcity have anything to do with it. The study used qualitative research. The study uses normative or socio legal by analyzing relevant sources and news related to the scarcity of cooking oil. The results showed that the cause of the scarcity of cooking oil was the highest retail price which was marked by the issuance of Permendagri No. 6 of 2022, the law of one price which causes arbitrage, artificial scarcity by businessman, panic buying among the public, conditional sales and distribution problems. The relationship between the cartel and the scarcity of cooking oil lies in its complex and non-transparent distribution to consumers. The cartel group restrains the widely circulated cooking oil products with HRP because the businessman will lose out automatically if sold at HRP. Therefore, businessman withdraw products from the market and resulting in scarcity
Legal Certainty of Suspension of Debt Payment Obligations Proceedings during The Covid-19 Pandemic Period
No full textDuring the Covid-19 pandemic period, the Suspension of Debt Payment Obligations (PKPU) Proceedings at the Commercial Court in Indonesia are now carried out online. The implementation of Suspension of Debt Payment Obligations (PKPU) Proceedings Online in the Commercial Court during the Covid-19 pandemic period was carried out based on the Regulation of the Supreme Court of the Republic of Indonesia (PERMA) Number 1 of 2019 and the Decree of the Chief Justice of the Supreme Court of the Republic of Indonesia Number 109/KMA/SK/IV/2020. However, the implementation of Suspension of Debt Payment Obligations (PKPU) Proceedings Online during the Covid-19 pandemic period in every Commercial Court in Indonesia varies, depending on the conditions and facilities at the Commercial Court. In response to this, since the beginning of 2022, the Supreme Court has drawn up a draft amendment to PERMA Number 1 of 2019 and formed technical instructions for amendments to PERMA Number 1 of 2019 which the preparation is still ongoing until August 2022. This research was conducted using a normative juridical law research method. This study discusses the amendments to PERMA Number 1 of 2019 and the draft technical instructions for amendments to PERMA Number 1 of 2019. The results of the study showed that the draft amendments to PERMA Number 1 of 2019 and the draft of technical instructions for amendments to PERMA Number 1 of 2019 still do not regulate the implementation of creditor meetings and online voting. In this regard, it is recommended that the Supreme Court add rules regarding guidelines for conducting creditor meetings and online voting in the Suspension of Debt Payment Obligations (PKPU) Proceedings Online process so that the Suspension of Debt Payment Obligations (PKPU) Proceedings Online process in all Commercial Courts is uniform and provides legal certainty for the parties
Examination and Confiscation of Notarial Deeds for The Purpose of Criminal Law Enforcement without Approval from The Notary Honorary Council
No full textThe Notary's right of refusal through the approval of the Notary Honorary Council (NHC) hinders the practice of criminal law enforcement because it is absolute and there is no further (final) legal remedy, even though a similar policy (beleid) has been revoked by the Constitutional Court. In practice, the notary cannot be examined by investigators, public prosecutors, or judges, unless they have previously obtained NHC approval, as regulated in Article 66 paragraph (1) of Law Number 30 of 2004 as amended by Law Number 2 of 2014 (Notary Position Law). Even if Notary Honorary Council refuses, then there will only be further legal remedies through a lawsuit by the State Administrative Court. In fact, the provisions regarding the Notary's right of refusal should be "˜determination' by court decisions (vonnis) as regulated in Article 170 of the Criminal Code, and not "˜administrative determination' (beschikking) through NHC approval based on the delegation of supervisory authority from state institutions. This paper concludes that every law enforcer in criminal cases (police, prosecutors, and judges) can examine a Notary with the condition of special permission from the Head of the local District Court, approval of direct interested parties, or NHC approval as stipulated in Article 43 of the Criminal Code in conjunction with Article 66 paragraph (1) of the Notary Position Law. This paper is normative research with a statutory approach, conceptual approach, and case approach
The Importance of Using Electronic Deeds to Facilitate The Service and Storage of Notary Archives
No full textThe rapid progress of the development of information technology has made many changes in human life on earth. Work and activities that used to be done manually are now shifting to using a technological approach. This has been applied in assisting tasks in government and business such as banking, and trading in cyberspace. The rapid advancement of technology in this age of informatics that can provide speed, accuracy, and certainty is a solution to solving various problems and at the same time providing benefits for its users. Notarial deeds play a very important role in facilitating business transactions in the form of trade contracts or other deeds in banking. But unfortunately, in the midst of the advancement of information technology, it turns out that the notarial deed currently does not support the rapid progress of the technology. The question is whether it important to make an electronic deed in carrying out the duties of a notary. The research method used in this paper is a normative juridical method because the results of legal research on electronic deeds that have been carried out so far are still in the form of literature
Measuring the Quality of Legal Aid Services as the Embodiment of Access To Justice
No full textSince the enactment of Law Number 16 of 2011 concerning Legal Aid, the practice of legal aid services still has several problems including not being able to reach all districts/cities due to the limited number of Legal Aid Organizations that can provide services. This paper aims to describe the implementation of legal aid services and analyze optimal strategies in improving the quality of legal aid services. This study used two approaches, qualitative and quantitative or commonly referred to as the Mix Method. Data collection methods used in this study are surveys, interviews and document studies. The results of the study show that the quality of legal aid services as a manifestation of access to justice can be said to be very good by referring to the results of the assessment on the performance of legal aid organization units and the quality of litigation and non-litigation legal aid services. However, several aspects need attention, namely the information aspects in litigation services and the procedural aspects of non-litigation services. Guided by the results of the study, a strategy is needed to improve the quality of legal aid organization services by increasing access to information to service recipients. Legal Aid providers can use online surveys in evaluating the implementation of legal aid services throughout Indonesia. This strategy is the right step, effective, efficient and in accordance with the pandemic conditions and technological advances.
Discontinuation of Corruption Investigation and Prosecution: A Comparison of Indonesia, The Netherlands, and Hong Kong
No full textThe discontinuation of the investigation and prosecution of corruption crimes is one of the important substances of the amendment to Law No. 19 of 2019 concerning the Corruption Eradication Commission which then led to debates both among academicians and legal practitioners. The discourse focused on the essence and concerns of transactional practices in the process of law enforcement for corruption crimes in the future. By using the legal comparative method, this paper tries to compare the provisions regarding the discontinuation of the investigation and prosecution of corruption crimes in Indonesia, Hong Kong, and the Netherlands. The results of the study show that the provisions regarding the discontinuation of the investigation and prosecution of corruption crimes in the three countries have differences in their arrangements. Normatively, Indonesia and the Netherlands regulate this matter in several articles, while for Hong Kong, although they do not regulate it in an expressis verbis manner in the law, the provisions concerning the discontinuation of investigations and prosecutions of corruption crimes are known in their law enforcement practices as seen in the case handling scheme published by the Independent Commission Against Corruption (ICAC). However, the use of the mechanism for terminating the investigation and prosecution of corruption crimes can be seen as a balancing mechanism against the legal process. Regulations regarding the discontinuation of investigations in corruption crimes must be maintained as a control mechanism against the possibility of errors in law enforcement procedures or for other technical reasons
Legal Protection of Kid Influencers from Child Exploitation
No full textAdvances in information technology and improvements to internet network infrastructure make it easier for everyone to work and obtain information. There has been an adaptation of marketing techniques using influencer marketing, so the influencer profession is known. Unfortunately, to get marketing targets aimed at children, kid influencer services are a form of influencer marketing. Children are considered unable to make decisions about themselves. The roles of various parties are needed so that kid influencers can avoid acts of exploitation because the use or direction of children's energy as kid influencers sacrifices children's development both emotionally and physically. This article is to find out the fulfillment of children's rights so that they can live, grow, develop, and participate optimally by human dignity and protection from violence and discrimination. This article uses a normative juridical approach, analyzed qualitatively. Based on literature study regarding legal protection, Indonesia ratified the United Nations Convention on the Rights of the Child with the Presidential Decree Number 36 of 1990 concerning Ratification of the Convention on the Rights of the Child; Amendment to the 1945 Constitution by including Article 28B Paragraph (2); and Law Number 23 of 2002 concerning Child Protection. It is hoped that all related parties will prioritize programs that protect children from exploitation in the implementation of all Child Protection instruments
Analysis to The Policy of Delaying The Execution of Those Sentenced to Death is a Violation of Human Rights
No full textHuman rights are basic rights of the human being that exist and are a gift of Almighty God. Human rights are also natural rights that therefore cannot be revoked by other human beings. Indonesia is one of the countries that still apply the death penalty in its positive law where the unlawful acts are considered an extraordinary crime that endangers the lives of the nation and the State. The discourse of Indonesia as a country that has the philosophy of Pancasila until now can cause pro and con problems, because there are still many among legal experts and human rights activists as well as the public who question it because of differences and views, among others. The statement of the problem in this scientific paper is "How is the policy related to the death penalty in human rights seen from the current positive legal regulations?" The method used in this study is a normative juridical method. Seeing so many convicts with sentenced to death who have not been executed, it can be said that the State has committed human rights crimes (against convicts with sentenced to death), because they have served the sentence for the 2nd (second) time, namely the Imprisonment and Death Penalty. The implementation of Restorative Justice is possible to be executed as a legal breakthrough, where it becomes a solution to avoid human rights violations that can occur within the time of the delay of the death penalty. The National Commission for Human Rights (the Komnas HAM) as a representative of the Government is expected to be more aggressive in protection efforts