Sriwijaya Law Review
Not a member yet
181 research outputs found
Sort by
The Romanticism of Alcoholic Beverage Regulation in Indonesia: Evidence of Legal Uncertainty?
Full text linkLegal provisions regarding alcoholic beverages are a complex issue in Indonesia. Therefore, this relates to several aspects, ranging from health or adverse and destructive impacts, halal and haram, to investment-related economic factors. However, to date, no law in Indonesia explicitly regulates alcoholic beverages. The formation of the existing Bill on Alcoholic Drinks must consider all aspects, whether social, cultural, economic, political, or religious. In addition, drafting the Alcoholic Drinks Bill must involve all elements of society comprehensively. This article aims to conduct a legal analysis of the legal policy of regulating alcoholic beverages in Indonesia. The analysis is carried out on the applicable positive law (ius constitutum) and legal policies to regulate alcoholic beverages in the future (ius constituendum). The Normative Legal Research Method is used to analyse the legal system of alcoholic beverages in Indonesia, which shows the uncertainty of management, control, and supervision. This impacts the conflict of interest between investment and the moral life of the Indonesian people. As a result, this study recommends that lawmakers reform the alcoholic beverage law in Indonesia by paying attention to Pancasila as the basis of the nation's philosophy. For this reason, integrated regulation and supervision of alcoholic beverages are needed, and law is urgently needed to unify the overlapping and diverse regulations regarding alcoholic beverages
The Urgency of Gender-Based Counterterrorism Policy Regulation in Indonesia
Full text linkGender-based counterterrorism in Indonesia still has not yet obtained greater attention from policy stakeholders. The role of women in handling terrorism cases is still lacking and results in the absence of gender sensitivity. This research aims to analyse regulations regarding policies on terrorism that are spread out not only at the level of laws but also at a more technical level of regulations. This research also involves the analysis on the urgency for policy regulation for gender-based counterterrorism. This research combines both legal/juridical-normative research and juridical-empirical/socio-legal research. The results of this research indicate that counterterrorism regulation in Indonesia is still general or gender-neutral. From an institutional perspective, the institutions that handle the criminal act of terrorism, which are the National Counter-Terrorism Agency (BNPT) and Special Detachment 88 for Anti-Terrorism (Densus 88 AT), have not accommodated a gender perspective. Consequently, the involvement of female law enforcement officials is still limited. Further, the issue of “silo mentalities" among these institutions has resulted in partial counterterrorism policies that are issued by each institution. Policy stakeholders should cooperate with other government institutions and increase the involvement of women in counterterrorism strategies to ensure that counterterrorism policies integrate a gender perspective
Challenges of Indonesian Halal Industry in the Digital Economic Era
Full text linkFood is the most important basic human need, and its fulfilment is part of the human rights of every Indonesian people. Food must always be available in a sufficient, safe, quality, nutritious, varied manner at a price that is affordable by people's purchasing power and is halal given the religion and beliefs of the community, especially Muslims. The awareness of Muslim consumers in Indonesia regarding halal products continues to increase. However, there are interesting facts about the current pattern of fast food and beverages consumption due to technological advances in today's digital economy. This article examines the challenges of the Indonesian halal industry in the digital economy era. The method used in this study is a juridical or normative approach, such as an approach to legislation and literature relevant to the halal industry. As a result, the law on halal product guarantees emphasises that the challenge for the Indonesian halal industry in this digital economy era is the obligation of halal certification for all food and beverage products. Unfortunately, the regulation is not serious enough to be enforced by the government because it is not supported by the ease and low cost of making a halal certification, coupled with a lack of public awareness. So the halal industry in the form of fast food and beverages in Indonesia, especially in today's digital economy, is still difficult to obtain. Thus, to obtain a halal food and beverage industry in this digital economy era, the alternative is that there must be a special institution that issues and supervises halal certification of food and beverage products that will circulate in the community and synergise with the government
Declarative System in Preventing the Criminalisation of Indigenous People for Adat Rights Conflicts in Indonesia
Full text linkThe existence of indigenous peoples as entities was born before the independence of the Republic of Indonesia. However, it is still disturbed by criminalisation by law enforcement officials for legal actions of indigenous peoples on their Adat lands whose Adat rights were transferred to other parties. Various regulations related to indigenous peoples already exist, and the Bill on Indigenous Peoples is not satisfying in preventing cases of criminalisation against indigenous peoples. It is because there is no adjustment in several crucial aspects, such as the nature of the recognition of indigenous people, protection of Adat lands and the application of criminal sanctions to achieve legal harmonisation in preventing the criminalisation of indigenous peoples. Synchronisation has not yet been realised between the substance of the legal rules related to indigenous peoples at the national level and the draft Bill on Indigenous Peoples with regional technical regulations at the sectoral level.This research uses statute and conceptual approaches to analyse legal norms, legal concepts, and legal principles related to indigenous people in Indonesia. As a result, it is believed that the protection of indigenous people's existence should be provided through a declarative system, not a constitutive system. It is also necessary to eliminate criminal sanctions against indigenous peoples in some related legal products according to the characteristics of indigenous peoples to stop the criminalisation of indigenous peoples and expand legal assistance for indigenous peoples in the context of implementing the law
Hong Kong Security Law 2020: Between State Sovereignty and Breach of Treaty
Full text linkIn 1984 the People's Republic of China (PRC) and the United Kingdom (UK) signed an international agreement to hand over Hong Kong to the PRC on the condition that it be granted a high level of autonomy, except in the field of defence and cooperation with foreign powers. In 2020, PRC Government issued the 2020 Hong Kong Security Law, which contains restrictions on political rights for the people of Hong Kong. This provision will automatically lead to discourse in international law, whether the HKSL 2020 is a manifestation of the implementation of PRC's legal sovereignty or violates the Sino-British Joint Declaration 1984 as a treaty which contains requirements for the transfer of Hong Kong. This article is intended to examine these problems using a normative, historical and conceptual approach. As a result, even though PRC has sovereignty to implement its national law in the territory, the authority must be placed within the limits of compliance with international law. Non-compliance with international treaties will lead to consequences of internationally wrongful acts as a breach of the treaty
The Patent System During Global Pandemic and the Access to Medications and Vaccines
Full text linkThe Declaration on Trade-Related Intellectual Property Rights (TRIPS) and Public Health Agreements want to promote the balanced interpretation and implementation of its provisions and promote universal access by assisting WTO members to protect public health rights. Two years will soon pass, and the emergence of new variants of COVID-19 shows that the virus will not stop at national borders. However, vaccines are gradually entering and almost monopolised by industrialised countries. If Jonas Salk thought in the 1950s that patenting his polio vaccine was like patenting the sun, the problem appearing is that today's patent holders do not think so. The COVID-19 vaccine is owned by biotech companies, universities, research institutes or pharmaceutical companies. The purpose of this research is to analyse, through a normative juridical approach, the requirement for patent holders to protect their intellectual property rights if they are to remain competitive in the marketplace. Not to forget that they must pay patent fees as a percentage of the final price of the vaccine, which is a significant benefit to the economies of the countries where they are located. While for developing countries, the best solution would be to produce their vaccines. With industrial property rights, it seems impossible to transfer the vaccine technology on COVID-19. That is why some developing countries (South Africa and India have the support of many other developing countries) have filed a complaint with the WTO, requesting a waiver of property rights under Article 31 of TRIPS in order to produce a COVID-19 vaccine on a large scale and at an affordable price.
Society 5.0: A New Challenge to Legal Norms
Full text linkSociety 5.0 is a new term used to indicate the future world. This society is based on ubiquity, learning machines, the internet of things, big data, cloud computing, cryptography, and biometrics. All these technologies will be merged to create a new mode of life. The new way of life will inevitably influence human beings’ values, concepts, and conduct. The result of these changes will consequently bring challenges to many legal areas. This paper addresses the challenges that brought society 5.0 to legal norms. It utilises the analytical approach to examine the capability of pre-existing legal norms to cope with new realities created by society 5.0. The paper analyses the legal implications of society 5.0 in their sociological context. It presents a jurisprudential vision to establish legal norms compatible with the new society. Three fundamental principles should be considered to establish new legal. First, social facts that trigger legal regulation can simultaneously occur in multiple places. Secondly, what the study called duality of legal rules will not survive in society 5.0 era. Third, the paper turns the spotlight on new intelligent systems which may introduce new law addressees
Regulatory Support for Biosequestration Projects in Australia: A Useful Model for Transition to Net-Zero Emissions?
Full text linkThis paper considers the effectiveness of Australian regulatory measures to support storing atmospheric carbon in plants and organic matter in soils (biosequestration), a central element of the Australian greenhouse gas (GHG) emission policy through the Emissions Reduction Fund (ERF). Eligible methodologies under the ERF are broader than those in other jurisdictions. Hence Australian experience may have international application. The functionality of Australian regulation to achieve GHG emissions reduction is considered, focusing on provisions relating to additionality, permanence, monitoring, reporting and verification of emissions bio-sequestration. This analysis is conducted by reviewing key publications by research organisations, academics, government departments, industry organisations, environmental organisations and private sector consultancies. While the integrity of Australian biosequestration offsets is generally well regarded, persistent issues have been identified with regard to the additionality of avoided deforestation methane capture in intensive agriculture and landfill gas projects. The proportion of Australian emissions represented by existing biosequestration offset projects is deficient. These issues must be addressed in order to scale up biosequestration projects as an effective element of Australia's net-zero emissions strategy. It can best be achieved by tightening Safeguard Mechanism baselines to drive demand for carbon credits and funding the Clean Energy Regulator to implement effective, independent MRV. Ongoing regulatory reform will be necessary to address such issues as they arise in the course of the implementation of specific methodologies. Nonetheless, ongoing emissions risks relating to biosequestration and other offset projects can only be adequately addressed by complementary policy to reduce emissions at the source
Indonesia's Mineral Export Prohibition and Legality of Export Duties Under the GATT Rules
Full text linkThe development of electric vehicles has been becoming a global trend to tackle worsening air pollution. The rich mineral country desires to reduce greenhouse gas (GHG) through transportation transformation by building a domestic-based battery vehicle industry. The policy resulted in importing export restrictions on nickel ore and bauxite by the Indonesian government. However, the measures are inconsistent with Article XI.1 of the GATT rules, which forbid imposing restrictions on the global market. There are cases in WTO DSB deciding that export restrictions infringe the provision, such as in China – Raw Materials (DS394) and China – Rare Earth (DS431) cases. In such cases, adjudicators also do not justify the imposition of export duties for the members. Meanwhile, Article XI.1 does not prohibit the imposition of export duties as another option to impose export restraints. The Indonesian authority could apply the measures. This Article analyses Indonesia's justification for imposing export control through the GATT rules. The research is conducted based on a normative juridical approach in which the sources come from the rules of GATT and its DSB decision to analyse the extent to which the measures are allowed to take into force for the member regarding the GATT provisions. The Article finds that Indonesia may be justified in the imposition of export duties to control the export of both raw materials. Article XI.1 of GATT justifies the original and accepted members to impose the duties measures as there are unclear provisions on export prohibition, which means Indonesia could enforce the charge of duties implicitly
The Standing of the Regional People's Representative Council Secretariat in Indonesia
Full text linkIndonesia's constitutional system has a clear separation between the judiciary, the legislature and the executive. Likewise, its functions have clear boundaries regulated in the legislation. However, in practice, there is an institution that has two institutional responsibilities simultaneously, namely the Regional People's Representative Council (DPRD) secretariat. Legally, the DPRD secretariat led by the DPRD secretary has responsibilities to the executive, in this case, the governor or regent on the one hand and the DPRD leadership as a legislative body on the other. This generally occurs in Indonesia, where the DPRD secretariat institutional system is regulated through regulations issued by the executive. This study uses a statute approach with a normative juridical method that examines legal products related to the secretariat of the DPRD in Indonesia. As a result, it is believed that the DPRD secretariat institutional system, which is regulated through executive products, violates the higher regulation. Therefore, a fundamental change to the executive legal product is crucial to maintaining the DPRD secretariat's impartiality in carrying out its duties and authorities