Sriwijaya Law Review
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The Need for a Legal Standard of Care in the AI Environment
Full text linkArtificial intelligence (AI) has risen to legal debate over legal liability in-volved in an incident. An intelligent machine can learn through experience and adapts its decisions accordingly. As such, if an intelligent machine’s be-haviour causes harm, the developer and the machine's owner may argue that the autonomous nature of AI systems has broken the causal link. The diffi-culty of determining who is liable for a harmful behaviour of an AI system is accentuated by the fact that tracing back the decision-making process of an AI system is not always possible. This paper aims to put forward a definition of a duty of care for developers and users of AI systems that could be the basis for the investigation of liability while seeking predictability of the allo-cation of legal liability in many cases involving AI incidents. The paper ex-amines some guidelines on ethics for AI to discern essential elements of the duty of care in the AI environment. The paper argues that a uniform minimum standard of care should be adopted internationally through model laws or even an international convention. A uniform standard of care should be enforced by State control rather than self-regulation by the AI industry. A licensing or certification requirement for AI products should be implemented to verify that the elements of the duty of care have been satisfied to control AI production and import/export relations. Violation of the standard of care can be an objective ground to negate or allocate negligence, especially when verifying errors in the design of the relevant software or if explaining the AI system's behaviour is not possible. A clear standard of care would, this paper assumes, help promote AI development and use and would not create imped-iments to investment in AI production
Foreign Direct Investment: A Comparative Analysis between Iraq and the UAE
Full text linkForeign direct investment (FDI) refers to an investment into a company or organisation through long-term or overseas expansion acquisition with the hope of forming a long-term relationship. It is a viable business tool utilised in businesses across the globe. However, in Iraq, despite the investment laws and other regulations to boost foreign direct investment, investors still need to be convinced about investing in Iraq due to several factors that might affect their investments. Many countries and some Arab countries have advanced in their FDIs, leaving Iraq behind, one of which is the UAE. Therefore, this research aims to analyse Iraqi's FDI vis-Ã -vis what is obtainable in the UAE to proffer effective and appropriate recommendations to be implemented to boost the Iraqi FDI for better future investments. To achieve this, the study utilised a theoretical method of review of existing literature and relevant legislations in the two jurisdictions, as well as a comparative analysis to analyse the key areas hindering the effectiveness of the Iraqi FDI compared to what is obtainable in the UAE. It was discovered that besides the dispute resolution mechanism, corruption, poor infrastructure, unskilled labour, political instability and the financial sector, the legal framework is inadequate, incomprehensive, and discouraging to foreign investors. However, these hindrances are not prevalent in the UAE. Hence, the suggestion for Iraq to boost its political stability, social security, improve its business climate and transfer knowledge and practices from the UAE to achieve a robust FDI in Iraq in fulfilment of SDG 17
Relationship between the Obligations from the European Convention on Human Rights and the Accession to the European Union
Full text linkBosnia and Herzegovina (B&H) has difficulty integrating and moving closer to the goal of becoming a member of the European Union (EU). From the legal perspective, the main issue is the need to fulfil the accession criteria. The article aims to examine the relationship between the obligations under the European Convention on Human Rights and Basic Freedoms (ECHR) and the obligations related to the European Union (EU) accession process, with emphasis on Bosnia and Herzegovina (B&H) as an EU membership candidate country. At first sight, those two obligations are separate. However, upon close examination, a strong link between those two obligations can be established using normative research with a historical approach, statute and case-based approach. On the other hand, the constitutional system of B&H has been described as discriminatory by numerous judgments of the European Court of Human Rights (ECtHR) and, most prominently, by the Sejdic-Finci case. B&H has difficulties implementing those judgments. Implementing those judgments is also set as one of the requirements of EU accession. Even if the two obligations seem separate at first sight, the ECHR has a special position within the law of the EU and is especially important in the accession of new Member States, including B&H. The research results show a special position of the ECHR in EU law and a link between the obligations under the ECHR and EU accession
Criticising the Implementation of the ACTIP in Southeast Asia
Full text linkThe legal framework for ASEAN cooperation in combating the crime of trafficking in persons, particularly women and children, led to the establishment of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP). This convention recognises that trafficking constitutes a violation of human rights and a crime against human dignity. However, the implementation of ACTIP faces numerous challenges that require strategic solutions. This research aims to examine the implementation of the ACTIP policy concerning human trafficking, assess ASEAN's efforts in tackling trafficking in women and children in the Southeast Asian region, and criticise the implementation of ACTIP. The research adopts a descriptive-normative method. The ACTIP Convention regulates provisions for dealing with trafficking problems, both prevention and handling, which are the responsibility of the central and local governments as well as the community by establishing various task forces in the implementation of prevention and control of human trafficking that occurs. ASEAN has taken several steps in the fight against human trafficking. Many obstacles must be faced to eradicate the criminal act of trafficking in persons. So. it is necessary to take several actions in implementing the ACTIP. ASEAN Members must cooperate either bilaterally or multilaterally so that the ACTIP arrangement can be implemented effectively
A Discourse on the Malaysian Geographical Indications Act
Full text linkThe Malaysian Parliament approved three Bills on Intellectual Property rights. One of it is the Geographical Indications Bill 2021, repealing the Geographical Indications Act 2000 (the Old Act). The new Bill received royal assent on 16 March 2022 and came into operation on 18 March 2022, known as the Geographical Indications Act 2022 (the New Act). The revisions made in the New Act were essential to harmonise intellectual property standards in Malaysia and facilitate the country’s accession to the Marrakesh Treaty. These amendments ensure that Malaysia adheres to the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and fulfils its obligations under the Regional Comprehensive Economic Partnership (RCEP). The purpose of this paper is to examine the salient features introduced by the provisions of the New Act and to examine how the enhanced provisions attempt to realign intellectual property standards in Malaysia concerning Malaysia's broader obligations under the Regional Comprehensive Economic Partnership which have come into effect in Malaysia on 18 March 2022. The methodology employed in this research is doctrinal, especially focusing on the interpretation and analysis of the statutory provisions. In light of the changes in the New Act, New Regulations and the New Guidelines, the paper concludes by forwarding several recommended best practices to be considered by registered proprietors in the country
State-Owned Enterprise’s Debt in the State Financial Regime
Full text linkSeveral Indonesian State-Owned Enterprises (SOEs) have had very high debts recently. Several reasons, such as government assignment projects, the impact of the Covid-19 pandemic, and corrupt management behaviour, have caused the increase in liability. There is a fierce debate among academics and legal scholars regarding whether the SOE’s debt is state debt. A state company is an independent legal entity separate from the state and obtains capital from separated state assets. Besides, the state, as the majority shareholder, assigns SOEs to projects that support government programs even though they are not profitable. In addition, several SOEs often receive State Equity Participation to survive bankruptcy caused by running out of capital or large debts. This paper will analyse the country's debt status from the perspective of public finance by taking the case of Indonesia. Moreover, it will explore the theoretical and empirical aspects of SOE’s debt from a state finance point of view. This study will use doctrinal legal research to interrogate the law as it is and should be. Although this research concludes that SOEs' finances are a state financial regime, the supervision of SOEs is not Government Judgment Rules but Business Judgment Rules. SOE's debt is the responsibility of SOE as a corporate legal entity. In the case of Indonesia, the government often rescues SOEs that have failed to pay their debts through State Equity Participation and/or privatisation while maintaining most state ownership shares, for instance, Garuda Indonesia, a national airline. Finally, state accountability for SOE's debt only occurs indirectly because of the financial separation between the state and companies. The Indonesian government saved Garuda Indonesia's finances to protect national assets and continue to control vital businesses. However, the state must also reform the management of SOEs so as not to harm state finances by upholding good corporate governance and preventing fraud and corruption
“Originalism†of Interpretation in the United States Constitution
No full textOriginalism is a viewpoint that is one of the methods and theories of constitutional interpretation. It remains controversial in its application, particularly in the decisions of the United States Supreme Court. Originalism first held that the interpretation of the United States Constitution must follow the original intent of the constitutional drafters or those who ratified it. However, in the 1990s, this stance changed, namely that the interpretation of the Constitution must follow the original meaning of the constitutional text. The aim of this research is to understand the anti-mainstream concepts of originalism interpretation. The fundamental problem lies not to answer which one is better between originalist and non-originalist. Instead, it rather depends on how to use this approach in several cases. It is possible that in one case using an originalist approach will be more relevant and appropriate, while in another case it will be absurd, and it is happened in several decisions in the United States. The Normative legal research method was used in this research with five major approaches. Those are the statute, conceptual, historical, casuistry, and comparative approaches. The result of this study indicates that: first, originalism is a stance directly related to perspective on the issue of interpretation of the Constitution. Meanwhile, the interpretation of the Constitution itself is an attempt to understand the definitions contained in the Constitution and the objectives it aims to achieve. Second, reflecting on the practice in the United States, the originalism approach may be more relevant on some occasions. However, originalism will be absurd if applied on other occasions because society has changed so much. Therefore, in such circumstances, getting out of originalism is a necessity
Enhancing Restorative Justice in Indonesia: Exploring Diversion Implementation for Effective Juvenile Delinquency Settlement
Full text linkIndonesia’s juvenile delinquency is rapidly increasing in a high number every year. At the same time, restorative justice’s implementation through the diversion mechanism is ineffective. This circumstance indicates that efforts to enhance juvenile delinquency settlement are essential. Hence, this research elaborates on diversion challenges in settling cases involving juveniles in Indonesia. Moreover, it will analyse efforts to optimise diversion implementation in strengthening restorative justice in settling juvenile cases in Indonesia. This is normative research that uses a statutory approach and is described qualitatively. The research illustrates numerous obstacles in applying diversion during juvenile delinquency resolution in Indonesia. Amongst the difficulties are legal factors; law enforcer factors; factors of means or supporting facilities; societal factors, and cultural factors. These challenges incline the necessity to improve diversion applications in Indonesia’s juvenile delinquency. The effectiveness of diversion will contribute positively to the restorative justice system in Indonesia. Furthermore, optimising diversion is possible through reformulating regulation and prioritising prevention efforts to prevent juvenile delinquency from reaching litigation settlement
Finding the Truth in A Virtual Courtroom: Criminal Trials in Indonesia during the COVID-19
Full text linkVideo conferencing through video call platforms, such as Zoom and Google Meet, has become a useful option for judges holding criminal trials during the COVID-19 pandemic in many countries. This trend also occurred in Indonesia. Some judges believe that video conferencing technology will help them accomplish justice in an emergency, referring to the legal maxim 'salus populi suprema lex esto’ or ‘let the welfare of the people be the supreme law’. Although virtual trials assist courts in preventing the spread of the deadly virus, they have also affected the work of judges to reach the substantive truth. This paper examines the challenges concerning the rights of the accused and technological matters that have emerged under the use of virtual courtrooms and, in some ways, led to unfair trial procedures. We argue that the absence of laws that regulate virtual courtrooms, along with an outdated the Code of Criminal Procedure in Indonesia (KUHAP), can lead to miscarriages of justice. The arguments presented in this article are based on survey data conducted from December 2020 to January 2021. The respondents are judges from Indonesia's western, middle, and eastern regions who used video conference facilities for criminal court hearings during the COVID-19 outbreak of 2020-2021
Internet Shutdown in Indonesia: An Appropriate Response or A Threat to Human Rights?
Full text linkIn recent years, there has been an increase in the use of harsh censorship in several parts of the globe, notably Africa and Asia. In some cases, the shutdown may be justified, but in other cases, it is driven by the political interest of the regime. The research evaluates the Internet shutdowns in the post-2019 presidential election in Indonesia and during the social unrest in Papua Island. Using normative legal research, which uses statute, case, and comparative approach concludes that although Internet shutdowns in some situations are tolerable, their usage should be less frequent and more restricted. These explanations must be examined using legality, legitimacy, and proportionality principles to limit official arguments for Internet shutdowns because they infringe on human rights. However, since no enforcement mechanism exists, this is only a formality. The Indonesian government's decision to block Internet access to social media platforms during the 2019 presidential election riots and Papua social unrest is not an appropriate response because the decision violates the principles of declaration, proportionality, necessity, and legality, which must be respected even in an emergency situation. Furthermore, the ruling infringed on the civil rights to information controlled by Article 19 of the ICCPR as adopted by Law Number 12 of 2005. It also harmed several industries, including digital-based commerce. The research proffers alternative Internet policy choices for the government in response to the political escalation and social unrest