Veritas et Justitia
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KEDARURATAN KESEHATAN MASYARAKAT DAN PEMBATASAN HAM DALAM PERSPEKTIF HUKUM KETATANEGARAAN INDONESIA
Full text linkThe COVID-19 that spread in early 2020 made countries all over the world declare a state of emergency. In the context of Indonesia, President Joko Widodo declared COVID-19 as a type of disease that causes a public health emergency through Presidential Decree Number 11 of 2020 on March 31, 2020. This study aims to find out the status of public health emergencies from the perspective of Indonesian constitutional law. Furthermore, this research also aims to find out how the state\u27s authority in limiting human rights in public health emergencies is according to human rights law. In its analysis, this research uses a normative juridical method with a statutory approach and a conceptual approach. The results obtained indicate that the status of public health emergency as stated in Presidential Decree Number 11 of 2020 is different from the state of emergency as stated in Article 12 of the 1945 Constitution. As for the limitation of human rights, the state has the authority to limit the human rights of its citizens in the COVID-19 public health emergency
INSTRUMEN RATIFIKASI PERJANJIAN PERDAGANGAN INTERNASIONAL: REZIM PUTUSAN MAHKAMAH KONSTITUSI NOMOR 13/PUU-XVI/2018
Full text linkThe intrusive character inherent in international trade agreements makes the particular form of the treaty unique compared to other treaties. The trade agreements\u27 intrusiveness means the treaty impacts individual rights relatively more than other treaties on its implementation. Confirming such a particular character, the Indonesian Constitutional Court, via its Decision No. 13/PUU-XVI/2018, provides additional criteria for the treaty ratified through an act, in addition to the general forms of treaties. This study comprehensively discusses the consistency of the instrument form and the clarity of the reference regulations related to the procedure for ratifying the international trade agreement in Indonesia after the ruling of the 2018 Constitutional Court Decision. This study uses a normative juridical approach by making a library of data covering principles, laws, and regulations or legal theories relevant to research as the main material. The study shows that Constitutional Court Decision No. 13/PUU-XVI/2018 has allowed the international trade agreement to be ratified consistently using a legislative act replacing the past practice of using a presidential act. Moreover, the provisions on international trade agreements ratification under Indonesian trade law and Indonesian treaty law must be enforced using "lex specialis derogat lex generalis" principle. Although they share the same norms after the Constitutional Court\u27s Decision 13/2018, specific provisions under the trade law prevail over the general provisions of the Indonesian treaty law
TUMPANG TINDIH PENGUASAAN TANAH DI WILAYAH IBU KOTA NEGARA “NUSANTARA”
Full text linkIn August 2019, the Central Government of Indonesia made an important decision to choose East Kalimantan province to be the location of the new state capital (Nusantara). East Kalimantan was chosen due to its large available state or government-owned land. Some of the large available lands are designated state forest while some others are unregistered land, for which the Government applies formal land tenure system. This article examines the extent to which formal land tenure system has been exercised in land control, land transaction, and land acquisition in the Nusantara through the inquiries on how local individual and group landowners responded to the application of the formal land tenure system. Data collection was conducted through library research and field interview. This research finds that there have been multiple overlapping claims over land rights taking place in the new capital. State, adat law communities, and sultanate are making claims to similar land plots. The overlapping claims arose after the bureaucrats developed a formalistic view or interpretation on state land. This view suggested any unregistered land is state land regardless of actual control and use that are existing. This form of interpretation will most probably influence the way the bureaucrat implements current regulations concerning the new capital where some stipulations respect customary land rights
URGENSI PENDAFTARAN PERALIHAN PEMEGANG HAK TANGGUNGAN PASCA MERGER MENJADI BANK SYARIAH INDONESIA
Full text linkThe merger of three Islamic state-owned enterprises into Bank Syariah Indonesia (BSI) has impacted the Mortgage Rights execution post-merger. This is partly due to the change in the name of the bank holding the Mortgage Rights before and after the merger. This study examines the obstacles in executing post-merger Mortgage Rights of three state-owned Islamic banks into BSI and the importance of registering the transfer of Mortgage Rights holders post-merger. This research is done with a normative juridical method through document and field studies at the BSI branch in Palangka Raya, which had experienced obstructions in executing Mortgage Rights when the auction application files was returned by the State Wealth Service and Auction Office. The data is analyzed descriptively and obtained from document and field study. It is found that first, one of the obstacles in executing Mortgage Rights by BSI is the difference in the bank’s name on the Mortgage Rights certificate before and after the merger. Secondly, the registration of the transfer of Mortgage Rights is important because a merger is considered as a cause for the transfer of Mortgage Rights due to "other reasons" (Article 16 of the Mortgage Rights Law). There are priorities to be taken into account in the transfer of Mortgage Rights post-merger includes customers who are due, Non-Performing Financing customers, and customers with Write-Off status
PEMAKNAAN DAN IMPLEMENTASI PRINSIP EX AEQUO ET BONO DALAM PENYELESAIAN SENGKETA EKONOMI SYARIAH MELALUI BASYARNAS
Full text linkThe dispute resolution mechanism in BASYARNAS, an Islamic economics arbitration institution, is based on the principle of ex aequo et bonowhich still raises questions regarding its interpretation and implementation. This research aims to comprehend the meaning, limitations, and implementation of the ex aequo et bono principle in the decisions of BASYARNAS. This study uses a normative legal research method with statutory, conceptual, and case study approaches. The findings show that the interpretation of the ex aequo et bono principle correlates with Sharia principles in terms of rules and principles, prohibition of ultra petita, and arbitrator\u27s capability. Meanwhile, the limitations of the application of ex aequo et bono are closely related to the consensual principle of the parties, primary petitum demands, Sharia principles, pacta sunt servanda, and the principle of good faith. These concepts will be taken into account in reviewing the nullity of a contract and its consequences thereafteer. In addition, the implementation, as seen in the Decision of BASYARNAS Case No. 01/Year 2010/BASYARNAS, shows that fair and propriety assessment of the panel does not solely arise from the phrase ex aequo et bono. The decision also negates the elements of the agreement and the good faith of the parties as a basis for continuing an existing contract
PROSPEK PENGATURAN KOMISI KHUSUS PENYUSUN DAERAH PEMILIHAN DALAM PEMILIHAN UMUM LEGISLATIF MENURUT UNDANG-UNDANG DASAR NEGARA REPUBLIK INDONESIA TAHUN 1945
Full text linkElectoral redistricting institution has a critical role in determining whether a proportional arrangement of electoral districts can be achieved. In Indonesia, there has been a disparity between electoral districts established by the House of Representatives (DPR) and the General Elections Commission (KPU), especially during the 2019 DPR Election. Using doctrinal and socio-legal approaches, this paper aimsto evaluate the prospect of establishing a separate boundary commission in accordance with the 1945 Constitution. The findings suggest that the establishment of a boundary commission as part of electoral management bodies is normatively feasible. However, it must meet the institutional requirements of being national, permanent, and independent. Independency has to be construed as the institution being impartial. By conferring the boundary delimitation authority to a boundary commission, not only would KPU\u27s burden be reduced, it could also better ensure that the delimitation process adheres to the delimitation principles
PERAN FAKULTAS HUKUM DALAM PENYIAPAN KESIAPSIAGAAN NASIONAL MENANGGULANGI TERORISME DI ERA REVOLUSI INDUSTRI 4.0
Full text linkThe use of information technology for the crime of terrorism is marked by a revolution in the modus operandi of crimes, starting from conventional to modern technological methods. Even though so far Indonesia has handled it fairly well, the crime of terrorism will continue to develop in other ways so that a continuous development of the ways to handle the crime is also needed through the preparation of what is called ‘National Preparedness’. This research begins with the examination of the the crime of terrorism through a legal (criminal) and information technology perspective of the institution of higher education in law (Faculty of Law) in a planned, integrated, systematic and sustainable manner. This study aims to identify and understand the role of higher education institutions, especially Faculty of Law, in preparing Indonesia\u27s National Preparedness to tackle terrorism crimes. Researchers use empirical juridical research by collecting primary data through in-depth interviews. The result is that higher education, especially the Faculty of Law, plays a role in supporting the preparation of National Preparedness through the implementation of legal higher education by integrating criminal law studies with the field of terrorism and the field of technology in implementing the Tridharma. Terrorism studies from a legal (criminal law) and information technology perspective can serve as a reference for the Government of Indonesia in preparing National Preparedness to tackle terrorism crimes
KEKUASAAN MAJELIS PERMUSYAWARATAN RAKYAT: PROBLEMATIK DAN PENATAAN
Full text linkPeople\u27s Consultative Assembly (MPR) is an autonomous institution between the House of Representatives (DPR) and the Regional Representatives Council (DPD) but its powers are limited because it is periodic and incidental. Using doctrinal legal research with a statute and comparative approach, this research concludes, first, the problematic power of MPR from its position as an autonomous state institution that is attached to the state secretariat and budget but limited in authority because the exercise of its power is periodic and incidental, such as the power to change the Constitution or other powers which MPR may not implement within five, ten, or fifteen years and beyond during the term of office of MPR members, and secondly, how to restructure the powers of MPR by changing the position of MPR from an autonomous state institution to a joint session of the DPR and DPD by revising Article 2 paragraph (1) of the 1945 Constitution which was originally "MPR consists of members of the DPR and members of DPD" to "MPR consists of the the DPR and DPD". It is found that the repositioning of MPR from an autonomous institution to a joint session may serve to balance its periodic and incidental powers
DEKONSTRUKSI FATWA MENGENAI LARANGAN BUNGA BANK (QIYAS VS ISTIHSAN)
Full text linkDeconstruction is intended to serve as critique to the method of determining the prohibition status of bank interest, which is analogous to usury, as well as reconstructing the issue with other methods to produce a more implementable fatwa, especially in a pluralistic society. Normative legal research is carried out using a historical approach and a conceptual approach regarding usury and interest, as well as the methods and the rationale for the prohibition of both. Application of analogy (qiyas) can bring "unsatisfactory" results as a method of granting the legal status of bank interest in the context of a pluralistic society because this reasoning method is heavily focusing on \u27illat (ratio legis, legal cause) and does not consider space, time, and circumstances involved. Meanwhile, the application of istihsan (juristic preference) is possible with justification for emergency (necessity), \u27urf (custom) and maslahah (benefit), resulting in different legal status of bank interest that not all bank interest is haram. This provides convenience in its implementation within a pluralistic society
KRISIS DAN REFORMASI: EKSPROPRIASI DALAM PERJANJIAN INVESTASI BILATERAL DI NEGARA DUNIA KETIGA
Full text linkSince its inception, expropriation has always been controversial. In the present time, amidst the crisis and reform of bilateral investment treaties (BIT), expropriation has become increasingly complex in theory and practice. Theoretically, for instance, there is no clear boundary between expropriation that requires compensation, and the right to regulate similar to expropriation but does not require compensation. This situation becomes more complicated due to the problem of inconsistency and incoherence of arbitral awards. Therefore, it is important to understand how the concept of expropriation is understood by experts and interpreted by the arbitration tribunal; while also comparing how the global south use that concept within their BITs (in this case, India, Brazil, South Africa) to find best-practices. The method used in this research is juridical-normative and comparative. Amidst the BIT’s crisis particularly regarding expropriation, the global south has made various attempts to reform its BIT model. Exceptions forexpropriation are included within the right to regulate. Expropriation and the right to regulate indeed have similar legal requirements (i.e.: pursuance of a public interest, non-discriminatory manner, due process of law) yet different legal effect regardingthe payment of compensation as another condition for expropriation vis-à-vis the absence of compensation inthe right to regulate. In general, taking into account the respective adjustments, the global south is relatively balancing the investment interest vis-a-vis public interest by modernizing the concept of expropriation in their BITs