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KAJIAN TENTANG PERTAUTAN HUKUM HUMANITER INTERNASIONAL DENGAN HUKUM PENGUNGSI
Get PDFInternational Humanitarian Law and International Refugee Law are two branchs of law relevant to the protection of human rights in a specific context. This research aimed at evaluate the relationship of these two branchs of law. Legal materials that thoroughly considered and analized in this research were relevant international rules and facts embodied in international customs, general principles of law, international treaties, conventions, declarations and decisions of international organisation, recommendations, academic publications, proceedings and working papers. Based upon the analysis of the existing legal materials, eventually, it could be inferred that International Humanitarian Law has influenced International Refugee Law both in the standard setting and in the interpretation process. The rules embodied in these two branchs of law established a continuum protection for the victims of confilct with violence. Two international humanitarian agencies; International Committee of the Red Cross and the United Nations High Commissionner for Refugees has served as the guardians in the framework of promotion and implementation of these two branchs of law. Grave breaches of International Humanitarian Law and acts triggered international displacement were international wrongful acts and generate state responsibility
LEGAL ISSUES RELATED TO THE SHARIAH ADVISORY COUNCIL IN MALAYSIA
Get PDFMalaysia has always aspired to be the hub for Islamic banking and finance. Various measures have been, and are being, carried out to promote Malaysia as an international Islamic banking and financial centre. As the backbone for this, the national Shariah Advisory Council (SAC) has been established under the auspices of the Central Bank of Malaysia Act 1958 (CBMA). Under the CBMA, the SAC has been conferred a statutory function as the authority for the ascertainment of Islamic law for the purposes of Islamic banking, as well as business and other types of Islamic financial businesses. In 2009, the CBMA 1958 was replaced and repealed. With the coming into force of the CBMA 2009, the role and functions of the SAC was reinforced and upgraded in terms of appointments of members and, most importantly, that the Shariah rulings pursuant to any reference made to the SAC by the Civil court or arbitrator concerning Shariah matters shall be binding on the Islamic financial institutions as well as on the court and any arbitrator. The issue of whether or not the SAC is the final arbiter on Islamic banking and finance disputes or, in other words, there is no longer a process of judicial review where it involves Shariah matters, will be the highlight of this paper. To what extent does the post CBMA 2009 solve the binding nature of the SAC upon the Civil courts of Malaysia as its rulings and directives are only relevant to ‘Shariah’ issues? What would be the situations if the issues of the Islamic banking and finance cases are deemed not to amount to a ‘Shariah’ issue, but are purely on banking, land matters or contractual interpretations? Has there any actual legal reform been brought about by this amendment or is it merely a cosmetic changes? If the court were to be bound by the SAC rulings, does this not usurp the independence of the judiciary which is the corner stone of the principle of separation of powers between the executive, the legislature and the judiciary? The above legal issues will be critically explored with the help of cases decided by the Malaysian Civil courts, pre and post CBMA 2009
ENHANCING VALUE OF CUSTOMARY LAND: A CASE STUDY OF NEGERI SEMBILAN
Get PDFThis paper examines the role of law in enhancing the value of customary land which is an integral part of the social and economic aspect of the adat perpatih community in the State of Negeri Sembilan, Malaysia. Tracts of customary land has been left idle for some time since 1980s mainly because of the wrong perception that agricultural activities will not yield fast and high returns. The Malaysian government identified various strategies to help alleviate rural poverty since the early days of independence. Despite the efforts undertaken by the government, the major problem posed to the government agencies is the increasing rate of idle agricultural land. Data were collected from interviews with affected landowners in Negeri Sembilan, the adat leaders, the State Authorities responsible for land administration and development, Federal government agencies established to address rural development strategies to identify the reasons for the increase in the idle agricultural landdespite the policies and measures undertaken by the government for promoting efficient use of the land. Research identified that there are factors impacting adversely on the successful implementation of the government’s plans to develop idle agricultural lands. This problem if left not being watched will impact on the supply of agriculture land available for development. This paper sets out the legal measures that can be adopted in addressing issues relating to idle agricultural land, the problems faced and the proposals to overcome the problems to prevent the loss of supply of land available for agriculture development which is very crucial to ensure food security and promote sustainable development of the rural community that can have the effect of enhancing the values of customary land
RIGHT TO PROPERTY: THE LAND ACQUISITION ACT 1960 AND THE SHARIAH PERSPECTIVE
Get PDFIslamic law recognizes both private and community property. This community rights are manifested in forms of entitlement for charitable purposes, known as waqf or trusts, sadaqah as well as zakat. Under the Sha‘riah, however, ownership of all property ultimately rests with God. Though individual property rights are upheld, there is a corresponding obligation to share, particularly with those in need. In Malaysia, the right to property is a constitutional right and thus, the acquiring authority cannot deprive a person of his land in an arbitrary manner. This paper discusses the extent of which the acquisition law falls in line with Shari‘ah thus preserving the right to property as determined by Shari‘ah to individuals. Similarly, the paper also looks at some basic principles sustained by the court in determining whether the working of the acquisition law falls within the constitutional guarantee provided under Article 13 of the Federal Constitution and the Sha‘riah. A study of the case law reveals that human errors due to greediness and lack of responsibility have contributed to some of the problems in land acquisition
INVENTARISASI INSTITUSI ADAT REJANG DALAM RANGKA PENYUSUNAN KOMPILASI HUKUM ADAT REJANG
Get PDFThe research aims at finding values, principles, and norms of customary law in Indonesia that are necessary to improve the concept of rule of law in Indonesia. One of the customary laws that still exists in Indonesia is Rejang customary law (Hukum Adat Rejang) which applies in Rejang society, Bengkulu Province. The existence of Hukum Adat Rejang as customary law is influenced by values of kinship, community groupings and pattern of traditional Rejang tribes. In order to find and identify such norms, a legal anthropological research with a qualitative research would be used. The research was conducted at the District of Rejang Lebong, Lebong, and Kepahyang. The result of the research shows that kinship system of Rejang is based on patrilineal or matrilineal system. Rejang tribes consist of four tribes, they are Petulai Tubeui or Tubai, Petulai Bemani or Bermani, Petulai Jekalang or Jurukalang, Petulai Selupue or Selupu. There are some norms that could be identified in Rejang customary law, namely Bemaling, Menebo, Tikam, Sigar Kulit, Cucuk Kulit, Mea Bayang Daleak, Iram Coa Badaleak, Iram Badaleak, Tukak Takek Kukuk, Membalew, Cido Celako, Kejujung Tenggak, Mendaur Tenggak, Samun, Upet, Dawa, Sumbang, Johong Permayo, Mbut, Tambang, Pascas Poncong, Tepeket, dan Kerineak.Key words: Rejang customary law, institution of adat Rejang, compilation of adat Rejan
IMPLEMENTASI HAK KONSUMEN PASCA PEMBERLAKUAN UNDANG-UNDANG PERLINDUNGAN KONSUMEN: A BREACH OF SOCIAL JUSTICE?
Get PDFThe implementation of Consumer Protection Act which has shown the struggle to create equality of social justice between business people and consumers still remains a binding norm. On the other hand, ignorance or infringement of consumer rights can be interpreted as a breach of social justice, because the breach of social justice is defined not as a infringement of social norms, but interpreted as an infringement of consumer rights stipulated in the Constitution of the Republic of Indonesia in particular and the rights of the public in general, as mandated in the concept of welfare state. The concept of welfare state is not an abstract concept in consumer protection law, as mandated in Article 29 verse (1) Consumer Protection Act, that a state has roles in ensuring the fulfillment of consumer rights stipulated in the constitution or in other provisions. Thus, a state has the obligation in creating equitable welfare through laws which is equal for all parties.Keywords: Consumer Protection, Social Justic
PENEGAKAN HUKUM TERHADAP PEMBAJAKAN DI LAUT MELALUI YURISDIKSI MAHKAMAH PIDANA INTERNASIONAL
Get PDFThe international community, nowadays is facing the most serious problem of the piracy in the sea on a large scale than ever before. Todays piracy is destroying and disturbing the shipping industry worldwide with the modern way. The problem of piracy becomes increase day by day rather than to decrease. It is universally called as hostis humani generis. The piracy today is directed against victims from around the world, creates harms that are felt by the international community, and involves many of the same violation, as like as a murder and hostage-taking, that are used to commit the crimes within the jurisdiction of International Criminal Court (ICC). The main purpose of this paper is to describe the piracy in details which could be seen in some international laws concerning this problem as for UNCLOS 1982 and SUA Convention 1988. This paper also will elaborate how piracy could be called as a crime under international law, as well as the jurisdiction of the ICC. This permanent international judicial body is empowered to prosecute crimes of concern to the international community as a whole, in accordance with the Rome Statute 1998 and ICC is expected to fullfil the impunity as the biggest obstacle for countries to bring the pirates into the justice
WEWENANG KELEMBAGAAN PENGELOLAAN LINGKUNGAN HIDUP DI ERA OTONOMI DAERAH
Get PDFThe aims of this study are to assess the regulation regarding institutional authority of local environmental management agencies and discover the strong regulation model and reflect the principles of local autonomy and ecological sustainability. The research used doctrinal legal research method by using primary legal materials and secondary legal materials and analyzed in a prescriptive-analysis. The research discover that the regulations regarding local environment management agencies are weak, due to uncertainty and lack of local authority, different nomenclature, and the absence of clear regulation on inter-institutional relations procedure. The future regulation model, the local environmental management agencies should have a broad authority, covering planning, implementation, monitoring and enforcement aspects. Duties and functions must integrate coordination and operational functions, and there is a clear relationship system encompassing both inter-institutional and inter-regional center.Key word: authority, institutional, local autonom
Persaingan Usaha Yang Sehat Dalam Perspektif Perlindungan Konsumen
Get PDFConsumer protection from the businessmen can be implemented if there is a healthy-law competition. It also contains two umbrella acts, they are, UU No. 5 The 1999 on the anti-trust application and the unhealthy-law competition; and UU No. 8 The 1999 on the consumer protection. Both acts provide clear guidance on how the businessmen implement a healthy-law competition in order the consumer obtain such protection. Although this has been legalised, the consumer rights are often overruled by the businessmen so that it will raise loss. To maximize the consumer protection, the information openness, the honesty and the seriousness of the businessmen become important things. Otherwise, the consumer will not believe the businessmen and it can threaten the continuity of the application from the businessmen themselves
MEMBERANTAS TINDAK PIDANA KORUPSI DI INDONESIA DENGAN MENATA BIROKRASI DALAM KERANGKA GOOD GOVERNANCE
Get PDFConsidering the severe corruption in Indonesia, its eradication then could not be conducted partially. It needs a holistic eradication corruption which involves the whole aspect, including Indonesian people and government institutions. Particularly from the side of government institution, it needs harder effort, related with the existence of bureaucracy obstacle and a poor good governance system inside the government organization. inline with that, one of the strategy that has to be used is to manage bureaucracy in accordance with the principle of good governance. Good governance consists of three principles. i.e: transparancy, participative and accountability. in addition to implement the good governance principle, job assesment on the bureaucracy has to be implemente