Sriwijaya Law Review
Not a member yet
181 research outputs found
Sort by
Looking at The Civil Suits and Court Cases Under the Justice Against Sponsors of Terrorism Act: Why it Fails?
Full text linkTerrorism remains a persistent and significant global threat, with far-reaching consequences for world peace and stability. The September 11, 2001 attacks marked a pivotal moment in the fight against terrorism, prompting governments and international organizations to adopt new strategies to counter this threat. In response to these tragic events, the United States enacted the Justice Against Sponsors of Terrorism Act (JASTA), a legislative framework designed to allow victims of terrorism to seek compensation from state sponsors of terrorism. While JASTA reflects a commitment to holding individuals and nations accountable for supporting terrorism, it has sparked controversy, with critics arguing that it undermines the principle of sovereign immunity, while others view it as a crucial tool for combating terrorism. This study examines the legal and procedural implications of JASTA, focusing on the challenges of bringing civil actions under this law. Through a literature-based research approach, the study explores anti-terrorism laws, relevant case law, and the practical obstacles of pursuing legal claims under JASTA. The findings highlight the legal complexities and political considerations involved in holding state sponsors accountable, emphasizing the need for a balanced approach that upholds international law and diplomacy while ensuring justice for terrorism victims. This research contributes to ongoing discussions on refining strategies to combat state-sponsored terrorism and offers recommendations for potential legislative reforms to enhance the effectiveness of JASTA in achieving justice
Empowering Communities Through Old Oil Wells: Analyzing Legal Frameworks and Policy Gaps in Indonesia
Full text linkThis article examines the relationship between the operation of old oil wells, as governed by Minister of Energy and Mineral Resources Regulation Number 1 of 2008, and the improvement of community welfare, particularly for communities surrounding mining areas. The regulation aims to empower communities by enabling their participation in oil well operations through Village Unit Cooperatives (KUD) and Regionally Owned Business Entities (BUMD). Employing a socio-legal approach, this study conceptualizes law as a functional social institution and investigates its application in three sub-districts in Musi Banyuasin Regency, South Sumatra Province. The findings reveal that the regulation is ineffective due to its complex permit requirements, which are perceived as a significant obstacle by local communities, thereby impeding its objectives. Moreover, the regulation lacks explicit legal provisions to address community welfare by exploiting old oil wells. To address these shortcomings, the study recommends revising the regulation to simplify licensing procedures and include explicit provisions that promote community welfare. Additionally, it emphasizes the need for policy instruments, such as legal assistance, mentoring, technical and non-technical guidance, and continuous supervision, to support community-led mining activities. These measures are essential to ensure that the operation of old oil wells contributes meaningfully to the welfare of local communities, aligning with the regulation's intended goals
Creation of Real Servitudes through Contractual Agreement under Kosovo Law and Beyond
Full text linkReal servitudes are property rights in foreigners' things (iura in re aliena), in which the titleholder uses others' property to benefit his property. This research aims to analyse the creation of the right of real servitude based on contract as legal title. The analysis specifically examines the provisions of the law of property and other real rights of Kosovo no. 57/2009 and the law on obligation relations of Kosovo no. 16/2012 that do not provide enough specification and clarifications for the content and this type of contract. The isolated analysis only in the provisions of Kosovo law is insufficient for clarification without comparison with the legislation of other countries. Therefore, the Kosovo law is compared with the civil codes of France, Austria, and Germany, aiming to identify similarities, differences, and legal concepts. The work is based on a literature review and normative, comparative, and empirical methods. The research results answer the questions related to the content, form, and type of the contract as a legal title. It shows that Kosovo law, even though it has some similarities with the French civil code when it comes to the conditions of the valid contract, however Kosovo law differs as follows: a) the contract is not the only condition for acquiring the right of real servitude, but the registration is also needed, b) the content of contract must be based on the interaction of provisions of the law on property and the law on obligation relations, c) the same contract is obligation relationship in nature, but it also serves for the transfer of right and registration of the real servitudes. In this sense, it is concluded that Kosovo law is closer to the Austrian Civil Code and German Civil Code. However, it is not a pure German legal concept since it requires two contracts: a contract of obligation and a contract of transfer of real rights.
The Use of Physical Strength in Children’s Education: Learning from Indonesian Court’s Judgments
Full text linkThis article explores the limitations of using physical force in educating children in Indonesia. It examines the prevalence of violence by parents and teachers in education. Increased public awareness and concern for children's rights have made the use of violence in education a taboo. This research uses a qualitative method with secondary data using literature and analysing court decisions from the human rights perspective. This study aims to determine the limits of tolerance for violence and corporal punishment. The court decisions have been taken as the data to be analysed from various locations where decisions have been issued were taken into consideration to depict the similarities and differences in deciding matters related to corporal punishment towards children. This article examines historical, cultural, and religious factors that influence the use of physical force, including interpretations of Islamic teachings. This paper also presents arguments for and against corporal punishment as an educational tool. This research sheds light on the complexities surrounding the permissibility of physical force in children's education and the conflicting views in society, providing insight into evolving understandings and legal perspectives on the subject
Human Rights Defenders in Indonesia's Digital Age: Navigating Limited Spaces in the Quest for Digital Democracy
Full text linkThe enactment and application of the Electronic Transaction Information Law are pivotal for delineating the appropriate boundaries for exercising freedom of opinion and expression within Indonesia's digital sphere. According to reports from international digital rights research and advocacy organizations, online media journalists and human rights activists frequently encounter direct pressure and cyber harassment. This article explores the balance of freedom of expression in Indonesia's digital domain to ensure a secureenvironment for human rights defenders advocating for human rights. This study uses socio- legal methodologies to draw on data from literature reviews and in-depth interviews. It underscores the need for regulatory reforms to define prohibited hate speech explicitly. SAFENet documented 153 cyber-attacks in Indonesia in 2022, predominantly targeting civil society groups, students, activists, and journalists. Additionally, the National Committee on Human Rights reported that 52% of attacks on human rights defenders occurred in the digital realm. While the protection of digital democracy varies by nation, Indonesia must establish aninstitution responsible for properly enforcing the ITE Law alongside an independent monitoring mechanism and related policies. Such institutions, including those dedicated to human rights defenders, uphold human rights and demonstrate a commitment to the principles of freedom, respect, equality, and dignity within society
Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
Full text linkCriminal law in Indonesia has yet to guarantee justice and human rights of bona fide (good faith) third parties in protecting their confiscated assets in corruption and money laundering cases. Criminal procedural law is inadequate in providing assessments for bona fide third parties. Therefore, Economics and Anthropology are needed in the investigation stage up to the evidentiary stage during trials. In this research, the main problems are formulated as follows: (1) what is the concept, definition, and scope of the assets of third parties in good faith in the laws and regulations in Indonesia? (2) how is the application of legal provisions regarding the protection of third parties with good intentions in corruption and money laundering? (3) what is the ideal role of the Public Prosecutor and Judge in protecting the property of a third party with good intentions in the criminal justice system? Normative law research conducted in this article showed that (1) the concept and understanding of bona fide third parties in civil law can be adopted in criminal law; (2) the application of legal protection to bona fide third parties over their assets in corruption and money laundering cases still depends on the moral goodness of law enforcement officials; and (3) investigators, prosecutors, and judges play an important role in protecting the human rights of bona fide third parties in corruption and money laundering cases
Jurisdictional Disputes between Central and Local Governments in the Management of Coal Mining
Full text linkOn June 10, 2020, President Joko Widodo ratified the amendment of Law Number 4 of 2009 to Law Number 3 of 2020 concerning Minerals and Coal, one of the substances that changed the rules of authority in granting licenses from initially located in the local government to the central government. Therefore, this study aims to analyse the issue of authority between the central government and local governments in coal mining management after the issuance of the Minerba Law in 2020. This research uses a qualitative approach using institutional data surveys as a data collection method. The collected data is analysed using descriptive analysis: data reduction, data presentation, and conclusion drawing. The findings in this study explain that in Law Number 3 of 2020 concerning Amendments to Law Number 4 of 2009 concerning Mineral and Coal Mining, the authority of local governments is withdrawn to the central government, starting from Mining Business License (IUP), People's Mining License (IPR) and Special Mining Business License (IUPK), Special Mining Business License (IUPK), Rock Mining License (SIPB), Transfer Permit, Transportation and Sales Permit, Mining Service Business License (IUJP), and Sales IUP. Although all local government authorities are fully withdrawn from mining licensing, local governments can still carry out mining licensing if the central government delegates authority based on statutory provisions. This latest regulation emerged through the idea of the government together with the House of Representatives on the grounds of simplifying licensing by easing requirements to increase investment obtained by the state. However, this change makes it seem as if the government wants to return to the era of centralisation. It is contrary to the spirit of decentralisation and regional autonomy that is being embraced in Indonesia.
Judaization in Palestine: Is It Genocide According to the 1998 Rome Statute?
Full text linkThe purpose of this study is to analyse the act of genocide in the attempt at Judaization in Palestine based on the 1998 Rome Statute and examine the possibility of categorizing the Judaization of Palestine as cultural genocide because Judaization has changed various aspects of Palestinian life and the Palestinian territories themselves. In addition, cultural genocide has been eliminated from its history, but there are still actions that are assumed to lead to it. This research is a type of normative legal research using a conceptual, statutory, case, and historical approach. The results of this study indicate that the Judaization of land and people in Palestine is a crime of genocide, as stated in Article 6 (c) of the 1998 Rome Statute. At the same time, the Judaization of identity and holy places can be categorized as cultural genocide, according to experts. However, the opinions of experts contained in legal works are subsidiary legal sources and, until now, have not been recognized as customary international law. In addition, the Judaization of identity and holy places within the framework of international law can only be viewed as genocidal intent, not cultural genocide
The Influence of Transjudicial Conversation in the Cross-fertilization of Philippine Human Rights Jurisprudence
Full text linkTransjudicial conversation refers to the domestic court's judicial practice of cross-citing foreign decisions on common and shared human rights issues. Scholars have argued that this phenomenon facilitates the cross-fertilisation of rights norms and standards across territories. While this has been documented and studied in various jurisdictions, its incidence and effect in the Philippine context is yet to be fully understood. The paper thus seeks to explore the extent of such influence in the Philippine setting, specifically in the development of domestic human rights jurisprudence. In order to examine its impact, this research employs a qualitative research design. Select cases on free speech and religious exercise rights were analysed using doctrinal and content analysis approaches. These cases were purposively chosen, considering that Philippine provisions on these rights have shown close affinity with foreign constitutions. The analysis reveals that the participation of the Philippine Supreme Court in the transjudicial conversation phenomenon generally causes the cross-border fertilisation of human rights norms. Particularly, the impact of this engagement contributes to filling the gap in the domestic understanding of human rights concepts, expanding existing legal systems such as human rights and penal laws, and aligning national human rights systems with international laws. Such impacts enrich the domestic understanding of free speech and religious rights, specifically drawing bright lines between legitimate state intervention and individual enjoyment of the rights
Adat Law as a Foundation for Advancing Indonesian Agrarian Law to Maximise Societal Welfare
Full text linkThe evolution of agrarian law in Indonesia, particularly land law, must adhere to the constitutional mandate of promoting the welfare of the populace. This subject is compelling because existing studies predominantly address the legal-formal dimensions of customary land law without adequately examining its practical implications for public welfare. This research investigates whether the development of Indonesian land law is in accordance with the Agrarian Law and explores how to formulate legal frameworks that mitigate land disputes and conflicts related to the utilisation of Ulayat Land for development purposes. The objective is to present alternative recommendations for resolving national agrarian law issues, often diverging from constitutional directives. Employing a normative research method, this study draws on both legal and non-legal materials through philosophical, legislative, historical, conceptual, comparative, and futuristic lenses. The findings reveal that the current development of national agrarian law does not fully align with the Agrarian Law's mandate to enhance the welfare of the Indonesian people. Therefore, this research offers alternative legislative methods aimed at producing agrarian legal instruments that more effectively promote the prosperity of the Indonesian population