Sriwijaya Law Review
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Conscientious Avoidance: How Knowledge in the Prosecutorial System Shapes Indonesia’s Transition?
Full text linkThe prevailing view in transitional justice studies suggests that Indonesia is experiencing a political transition without justice. In this article, we attempt to examine the conscientious avoidance of criminal prosecution of past gross human rights violation cases. Through the lens of sociology of punishment, we identify three factors that shape this current penal decision: the knowledge and domination in the penal system, the human rights-focused criminal victim protection and the welfare assistance as a symbolic reparation aimed at neutralising past atrocity crimes. This research employs a narrative approach under the discipline of socio-legal studies. This article contends that the decentralised structure of knowledge within the penal system reflects the dominance and authority in penal decisions, which consist of competing groups and interests. This complexity poses challenges at the institutional level in transforming the political motives behind past atrocities into criminal justice knowledge. The evolving nature of this knowledge within the country’s penal system indicates a future path for the prosecution of past atrocity crimes
Combating Phoenix Activity in Bangladesh: Insights from Australian Recent Reforms
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Many businesspeople employ deceptive tactics to generate profit. Among the worst offenders are those engaged in illegal phoenixing—a deliberate scheme to evade creditors by transferring company assets be-fore the company is liquidated. The absence of robust legal safeguards against this unethical and economically harmful practice exacerbates creditors’ losses, often impacting small depositors. It is, therefore, the state’s responsibility to close legal loopholes and strengthen laws to curb phoenixing by unscrupulous corporate directors. Recognising this, Aus-tralia reinforced its corporate legal framework in 2020 by amending its corporations’ legislation to combat illegal phoenixing. The reform im-poses statutory duties on corporate officers, including directors, to pre-vent creditor-defeating dispositions and holds individuals personally liable—both criminally and civilly—for engaging in, procuring, facilitat-ing, or encouraging such asset transfers. In contrast, Bangladesh lacks specific legal prohibitions against phoenixing, despite facing a more se-vere problem than Australia. Instead of tackling corporate misconduct, regulatory efforts have primarily focused on disciplining lenders in loan approvals, leaving delinquent borrowers or indebted companies un-checked. This article primarily examines Australia’s recent anti-phoenixing reforms and proposes legal overhauls for Bangladesh to ad-dress this persistent issue. The recommendations aim to prevent fraudu-lent asset transfers, safeguard financial institutions, and hold accounta-ble culpable corporate directors and officers. The findings may also benefit other jurisdictions confronting similar challenges
Countervailing Duties on Transnational Subsidies: WTO Review of the EU Case Against Indonesian Stainless Steel
Full text linkTransnational subsidies are financial assistance provided by a country to industries operating in another country in order to increase trade on a global scale. Transnational subsidies are used frequently in practical cooperation between countries. However, since the European Union imposed countervailing duties on products from Egypt and subsequently on Indonesian stainless-steel products, the concept of transnational subsidies has given rise to debate regarding subsidy regulations in international trade law. This research is aimed at analyzing the existence of transnational subsidy regulations under WTO regulations and the validity of applying the European Union's compensation import duty burden to stainless steel products from Indonesia which are suspected of receiving financial assistance from China through a cooperation project between the Chinese-Indonesian government. This research is research normative juridical which uses statutory, conceptual, case and philosophical approaches. The research results show that the transnational subsidy provisions regulated in the EU FSR are in accordance with the aim of prohibiting subsidies in international trade but are not recognized in the provisions of the SCM Agreement and GATT 1994
Legislative Controls for Disciplinary Penalties Imposed on Public Servants: A Comparative Analysis of Jordanian and French Legal Frameworks
Full text linkThis study examines the legislative framework governing disciplinary penalties imposed on public servants under the Jordanian Civil Service Regulation of 2020 and the French General Civil Service Law of 2021. It seeks to analyze the concept of disciplinary punishment, its legal nature, and the fundamental principles that regulate its application within public administration. Additionally, the research explores the extent of judicial oversight exercised by administrative courts over disciplinary sanctions, ensuring compliance with legal and procedural safeguards. By adopting a comparative approach, the study highlights both the similarities and differences between the Jordanian and French legal systems concerning the imposition of disciplinary penalties and the mechanisms of judicial review applicable to such measures. The findings underscore that while administrative authorities possess discretionary power in selecting disciplinary measures, this discretion must be exercised within the confines of legality, adhering to the principle of proportionality. The study emphasizes that excessive or disproportionate penalties risk judicial intervention, reinforcing the necessity for fair and reasoned decision-making. Furthermore, the research concludes that disciplinary sanctions should be proportionate to the severity of the infraction, with administrative bodies ensuring a clear and precise definition of violations and their circumstances. This clarity facilitates effective judicial oversight and prevents arbitrary or overly punitive disciplinary measures, thus maintaining a balance between administrative authority and legal accountability
Constitutional Protection of Cultural Heritage in Indonesia: The Role of Museums in Preserving National Identity and Public Welfare
Full text linkCultural heritage is a fundamental asset in promoting cultural diversity and facilitating access to education, social values, science, technology, and tourism. Museums play a pivotal role in preserving cultural heritage and fulfilling constitutional obligations, as enshrined in the Indonesian Constitution. Protecting cultural heritage is essential for maintaining national identity and upholding citizens' constitutional rights, particularly in education and cultural participation. This study analyses the constitutional framework and government policies related to cultural heritage protection, with a specific focus on museums in Indonesia. Employing a statute-based and comparative approach, the research examines constitutional provisions such as Article 18B(1) of the Indonesian Constitution, which mandates the state’s responsibility to preserve cultural heritage and safeguard indigenous communities' rights. Despite this constitutional obligation, challenges such as limited financial resources, inadequate maintenance, and institutional constraints hinder the effective operation of museums. The findings emphasize that strengthening museums is not only necessary for heritage conservation but also for fostering national and local values that define Indonesia’s constitutional identity. The study argues that the government must implement more comprehensive policies and allocate sufficient resources to enhance museums’ role in cultural preservation, ensuring their sustained contribution to public welfare and national development
Indonesia’s 2024 Election: Constitutional Court Perspectives on Electoral Violations
Full text linkIn 2024, Indonesia held a historic general election in which, for the first time, presidential, vice-presidential, and legislative elections were conducted simultaneously across all regions of the country. However, the election was marred by indications of various violations that raised concerns about its integrity. This study investigates violations that occurred during Indonesia’s 2024 general elections by analysing Constitutional Court rulings on electoral disputes. Employing a qualitative case study approach supported by NVivo 12 Plus for data analysis, the research identifies key institutional actors involved in the disputes, including the General Election Commission, the Election Supervisory Body, political parties, and other stakeholders. The findings categorize electoral violations into three major types: administrative, ethical, and criminal. Administrative violations are largely attributed to procedural complexities, inadequate preparation, and limited time for implementation, leading to errors in electoral management. Ethical violations arise from misconduct by election officials and political actors, often breaching the standards outlined in the Indonesian Electoral Law. Criminal violations, the most severe, include state apparatus interference, vote-buying, and voter disenfranchisement, all of which severely compromise electoral integrity and democratic principles. These violations have resulted in significant legal consequences, such as mandated re-voting in specific regions, vote recounts, and the disqualification of candidates. The study highlights systemic weaknesses in Indonesia’s electoral governance and underscores the urgent need for institutional reforms to ensure fair, transparent, and accountable electoral processes. Ultimately, the research contributes to a deeper understanding of the challenges facing democratic consolidation in Indonesia and the legal mechanisms available to address electoral disputes
Protecting the Right to Clean Water: Legal Challenges and Solutions for River Pollution in Kurdistan
Full text linkAccess to clean water is a fundamental human right recognised by the United Nations. However, in Iraq, particularly in the Kurdistan region, this right is under significant threat due to severe pollution and contamination of rivers. While the Iraqi Constitution and environmental laws indirectly acknowledge the right to clean water, the legal and institutional framework for river protection remains inadequate. This study focuses on the Tanjero River as a case study to assess Iraq's legal framework and enforcement mechanisms for water resource protection. This study identifies critical gaps in legislation and enforcement through a qualitative and socio-legal methodology, including interviews and analysis of relevant laws such as Law No. 8 (2008) for Environmental Protection and Improvement. The findings reveal that the Tanjero River's pollution is primarily caused by mismanagement of water resources, insufficient legislation, weak enforcement, lack of coordination, and inadequate infrastructure. The Kurdistan Regional Government must prioritise sustainable water resource management, establish a comprehensive legal framework, and implement rigorous enforcement measures to address these issues. These steps are essential to safeguarding the right to clean water, protecting public health, and promoting sustainable development in the region
Legal Consequences of Designating Cultivation Rights as Abandoned Land in the Context of Credit Collateral Objects
Full text linkLand rights under the Cultivation Rights Title (HGU) can serve as collateral in credit agreements through the imposition of a mortgage right. However, legal challenges arise when the status of HGU land as collateral changes, particularly due to its designation as abandoned land by the Indonesian Ministry of Agrarian Affairs and Spatial Planning/National Land Agency (ATR/BPN). Such status changes have significant legal implications for credit agreements, mortgage rights, and the economic value of collateralized land. This study analyses the legal framework governing the determination of abandoned land status, examining statutory regulations and their impact on credit agreements and collateral objects. Employing a normative legal research methodology, the study utilises statutory analysis, conceptual exploration, and interpretative approaches to assess the legal consequences of such status changes. The findings reveal that the designation of land as abandoned results in the termination of cultivation rights and the extinguishment of mortgage rights. While the credit agreement itself remains legally binding, the loss of economic value in the collateral renders it non-executable, leading to financial losses for both creditors and debtors. To address these legal uncertainties, the study recommends amendments to the regulatory framework governing abandoned land to enhance legal certainty, ensure fairness, and provide adequate protection for both creditors and debtors
The Principle of Proportionality in Drug Control Policy in the Philippines and Indonesia
Full text linkThe war on drugs has become a global concern, particularly in Southeast Asia, where drug-related crimes are considered a serious threat to national and international security. Two cases that will be discussed relate to the anti-drug campaigns in the Philippines and Indonesia, both of which have attracted attention due to their controversial law enforcement methods. This study aims to compare the application of the principle of proportionality in drug law enforcement in both countries, focusing on whether the actions taken align with international human rights standards. This research employs a juridical-comparative method, analysing legal policies, government policies, and human rights-related case facts from both countries. In the Philippines, the campaign under President Duterte's administration raised significant concerns regarding extrajudicial killings and the excessive use of power, which deviates from the principle of proportional enforcement. In contrast, Indonesia adopts a more judicial approach, although it still faces criticism for harsh verdicts and the implementation of the death penalty. The findings will reveal significant differences in how the principle of proportionality is interpreted and applied, influenced by political will, law, and institutional accountability. While both countries claim to uphold the rule of law, the level of adherence to the principle of proportionality varies greatly. This study concludes that a balanced and human rights-based approach is essential for sustainable and ethical enforcement of drug policy in Southeast Asia
The Right to Bail in Extradition Proceedings: Malaysia's Criminal Law Perspective
Full text linkThis article delves into the issue of bail pending extradition in Malaysia. It adopts a doctrinal legal research methodology, focusing on analysing legislation and court decisions to objectively understand how current laws and practices determine bail applications within the context of Malaysian extradition law. The study reveals that Malaysia's Extradition Act 1992 does not explicitly provide for bail pending extradition, except under limited circumstances. Malaysian courts have utilised section 44 of the Extradition Act 1992 to apply bail provisions from the Criminal Procedure Code. The study finds that Malaysian courts adopt a cautious approach when determining bail applications in extradition cases. However, this judicial approach presents challenges, particularly in extradition cases involving offences governed by specific statutes other than the Criminal Procedure Code. The findings suggest that the reliance on section 44 should be re-evaluated to address these challenges. The article concludes by recommending further research to assess the need for an explicit and comprehensive provision for bail in the Extradition Act 1992 to ensure legal consistency and a uniform application across all types of offences