Sriwijaya Law Review
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Unilateral Claim in Dispute of Island Over the South China Sea
Full text linkIn the unilateral claim, every determination of a territory is the right of a sovereign state and does not require agreement with international organizations or other countries. Especially regarding the borders of a country, many international regulations require a joint determination (bilateral or multilateral). The norm will impact the absence of responses from another country, or such a country does not react because its interests were not disturbed. China's unilateral statement over the South China Sea has tried to dominate globally, and at the same time, there has been no stabilization of peace. It will likely continue, expand, and have long-term adverse impacts on the regional economic and security situation in the region. China's unilateral claims in the South China Sea have also resulted in other warring countries, strengthening their presence and claims. This research uses normative approach which examines the unilateral claims under international law in the South China Sea especially in the UNCLOS 1982 and other related international law instruments. As a result, for China, it is necessary to improve its current position, at least it needs to negotiate in the future. Countries which is involved in the South China Sea should clarify and submit territorial claims and maritime rights under international law, including the UNCLOS 1982
Philosophy to Strengthen Baitul Maal wat Tamwil Law in Indonesia
Full text linkBaitul Maal wat Tamwil (BMT) is a non bank financial institution that operates based on sharia principles. As an alternative financial institution, BMT can support the acceleration of national economic growth, but BMT was established and developed with a gradual process of legal legality. BMT status is determined by the number of assets owned, the BMT has a different legal status according to the stages of the number of assets, and is subject to various and partial laws in accordance with the stage of legal status. The purpose of writing is to explain the philosophical basis of the need for legal entities and the formulation of legal norms of BMT as a legal strengthening of populist economic institutions in Indonesia. This type of legal research is normative legal research on legal principles and legal systematics. Based on the discussion it was concluded that the philosophical basis of the need for legal entities and the formulation of legal norms regarding BMT in Indonesia as a legal strengthening is for legal certainty so that can provide recognition, protection, and facilities for the development and benefits of BMTs for micro and small entrepreneurs who do not receive financing services from bank financial institution
Strict Liability Principle: Consumer Protection from Hidden Defective Products in Indonesia
Full text linkWeak supervision on the standardization of the quality of goods products, the negative impact of the use of technology, and fraudulent products cause an increase in hidden defective goods products in the current era of globalization. The phenomenon of the existence of hidden defective products increasingly demanding the importance of the role of government to regulate, supervise and control to create a legal construction of product responsibility for consumers, which normatively does not exist yet. The concept of consumer protection due to hidden defective goods is a new thing that has never been explained in Indonesian literature. The purpose of this paper is to analyze the hidden defective products phenomenon, and the legal basis on the principle of responsibility is applied. Strict liability of produces due to loss of hidden defective goods products as an effort to protect consumers in Indonesia. This research uses the normative analysis method by using secondary data as primary data through the statute approach, philosophical approach, and historical approach. The results of this study show the importance of legal products that can provide consumer rights without reducing the rights of produces. The need for a legal basis for the product liability principle with the principle of strict liability to claim the responsibility of a produces through developing the doctrine of tort as a basis for demanding compensation due to hidden defective goods from the outstanding produces on the market. For this reason, it is recommended as a consideration, namely normative amendment to the law of the Republic of Indonesia number 8 of 1999 concerning consumer protection as a short-term step, while the long-term step is to issue a special law that regulates the absolute responsibility of produces due to loss of defective products hidden in the future
Deradicalisation to Combat Terrorism: Indonesia and Thailand Cases
Full text linkTerrorism is a human-made disaster, which is usually in the form of organised crime. In prevention, terrorism cannot be done only through legal approaches alone but covers all aspects of society. While eradication aimed at combating terrorism, uncovering and addressing criminal cases and perpetrators of terror in the form of the establishment of the measures included in the crime of terror, handling, ranging up to the judicial investigation and threatened sanctions to perpetrators of terror. The method used is doctrinal with the statute approach, the conceptual approach, the historical approach, and the philosophical approach. The result shows that deradicalisation in Indonesia is carried out by BNPT for terrorists, families and sympathisers, while counter-radicalisation is carried out for the general public to increase the deterrent power of radical terrorism. In comparison, Thailand used the application of a curriculum in education as the concept of deradicalisatio
The Competency of Administrative Court in Adjudicating State Financial Losses Report Dispute in Indonesia
Full text linkThe debate on the absolute competency of the State Administrative Court in Indonesia to set the dispute over the State Financial Losses Report (LHPKKN) is proved to have caused dissenting opinion. The judgments between one administrative court to other court in Indonesia cause main problem of achieving justice and legal certainty. This research examines the issue of absolute competence of the Administrative Court in adjudicating disputes on the State Financial Losses Report published by the Financial and Development Monitoring Agency (BPKP). This article uses normative legal research and implement the statute approach, conceptual approach, and case approach. These approaches are used to discern and analyze several related legal materials or documents scientifically. The aims and objectives of this research are to find a legal solution on how this classic issue has to be approached and solved. As a result, it is found through this article that the Administrative Court has absolute competence in deciding disputes on the Report on the Calculation of State Financial Losses issued by the Financial and Development Monitoring Agency, which is supported by several fundamental reasons
Public Policy Defense and the Arbitrability of Competition Disputes Under the Philippine Arbitration Regime
Full text linkThe arbitrability of anti-competition disputes in the Philippines remains to be tested. It is since the Philippine Competition Act is relatively at its infancy, and cases are yet to be brought before the courts. This area entails much complexity considering that competition disputes are by nature imbued with public policy concerns, a mandatory exception for arbitration. This paper aims to examine the arbitrability of competition disputes under the Philippine domestic arbitration regime. After conducting an examination of cases and literature both in the Philippines and abroad, the paper argues that the Philippines may consider the US and French positions as to the arbitrability of competition disputes despite the presence of various public policy concerns. The public policy issues should only be taken into consideration when an arbitral award is brought before judicial bodies for recognition and enforcement and should not bar domestic arbitral bodies from taking cognizance of these disputes. It is to accommodate the state policy regarding alternative means of settling disputes such as arbitration in rendering speedy administration of justice. Whenever an award is granted, the same will be subject to court's intervention for recognition with due respect to the public policy concerns. In so doing, arbitration is being promoted without sacrificing the competition law policy of the Philippines
Tender Conspiracy Under KPPU Decision and Prohibition of Monopolistic Practices Act
Full text linkTender conspiracy is one of the anti-competition acts prohibited under Article 22 Law No. 5 of 1999 on Prohibition of Monopolistic Practices and Unfair Business Competition. As one of the violations which are almost always injurious, tender conspiracy is only regulated by a rule of reasonable approach giving an interpretation room of the consequences of the violation. The tender conspiracy is also proven conducted by reported parties in the case that it had been decided by KPPU, such as in the KPPU Decision Number 06/KPPU-L/2015. The questions arising in connection with the rampant practices of tender conspiracy are how they regulate in the applicable law and how KPPU decides on the practice of tender conspiracy in the case concerned with the law. The aim is to examine the causes of the rampant practice of tender conspiracy in relation to the regulations governing it, as well as to review the KPPU's decision on real tender conspiracy case. For this reason, this research is normative legal research with qualitative analysis techniques on secondary data and uses the statute approach, and case approaches. The results of the study indicate that Article 22 is not sufficient yet to regulate the prohibition of tender conspiracy and often leads to multi-interpretation. the KPPU decided that there is a horizontal conspiracy among defendantsindetermining of the tender winne
The Fulfilment of Right to Education for Persons with Disabilities: A Challenge in a Border Area
Full text linkThis study discusses the right to education policy for Persons With Disabilities (PwDs) In Border Area of Nunukan-Indonesia. This research aims to find out whether the legal regulation on human rights for with disabilities provided by the Indonesian government is appropriate or not and to find out whether the government of Nunukan District also provided some policies in handling a person with disabilities, in particular, their right to education. This research used a normative legal method, which complemented with field research. As a result, in order to fulfil human rights for PwDs, the Indonesian government was stipulated plenty of national laws, namely National Education System Law, the Protection of Children Law, and individually regulated by Law No. 8 of 2016 on Persons with Disabilities. Also, the most crucial factor is that the Nunukan District has not been set up the local regulation pertaining to PwDs. Only several policies are stipulated to overcome the right to education problems, but it does not enough to ensure the correct implementation of this right in the field
The Right to Use Legal Remedies Against Court Decisions in Contested Procedure
Full text linkThe purpose of this scientific paper is to handle in detail the main issues concerning the right to use legal remedies by the parties against court decisions. The right to use legal remedies against court decisions is recognized as one of the fundamental rights of litigants in the civil contested procedure. Due to the importance of using legal remedies in this procedure and other court proceedings, the right to use legal remedies is also foreseen by legal acts. We emphasize this because the right to use legal remedies is guaranteed by the Universal Declaration of Human Rights of 1948, by the European Convention on Human Rights of 1950. Also, the right to use legal remedies is guaranteed through the Constitution of the Republic of Kosovo of 2008 as one of the fundamental human rights. In contrast, the procedure, according to appealing means, has been regulated by the Law on Contested Procedure of Kosovo 2008. The main idea of this scientific paper is to clarify the right of parties to use legal remedies and what are legal remedies to this procedure. The results of handling consist of understanding the importance of legal remedies, in which cases legal remedies may be submitted, and their impact in exercising the right of litigants in order to provide protection to the legal interests of the parties. In this scientific paper have been conducted handlings concerning the right to use legal remedies, types of appealing means, ordinary legal remedies, and extraordinary legal remedies. This scientific paper is based on applicable legislation, judicial practice, and legal doctrine. In this paper are also given conclusions regarding the right to use legal remedies against court decisions in the contested procedure
The Death Sentence for Covid-19 Financial Fraud Perpetrators
Full text linkCoronavirus pandemic 2019-2020 or known as Covid-19, which spread throughout the world, including Indonesia, has caused casualties and disrupted the economy. Various attempts were made by the government to overcome the increasingly massive impact of the spread of Covid-19. One of them is by issuing the Government Regulations in Lieu of Laws No. 1 of 2020 concerning State Financial Policy and Financial System Stability for Handling Covid-19 Pandemic. Regarding this assistance provided by the government, it is miserable to have allowed the occurrence of criminal acts of corruption committed by government officials and their instruments. The purpose of this paper is to pay attention to the handling and eradication of corruption of Covid-19 Pandemic aid funds. The method used in this paper is to analyze data qualitatively in relation to this research which is a normative juridical type. The data used are primary and secondary data obtained through the search of legislation and materials related to the issues raised. As a result, this article argues that when there have never been cases of corruption whose actors have been sentenced to death in a normal situation, it might be possible for the misuse of the Covid-19 pandemic aid funds can be sentenced to death