Sriwijaya Law Review
Not a member yet
181 research outputs found
Sort by
The Role of Human Rights and Customary Law to Prevent Early Childhood Marriage in Indonesia
Full text linkPreventing early childhood marriage (ECM) can protect children’s rights from the perspective of human rights. There are several rules regarding the age limit for marriage. In Indonesia, the minimum age for marriage is nineteen years. However, in fact, early child marriage is still relatively high, with the seventh highest ranking in the world. This study aims to elaborate on the rights of children, which ECM potentially violates, and to identify who is responsible for minimizing and/or combating this phenomenon. This normative legal research with a human rights approach occurs in the childhood protection context. The results show that ECM has implications for violations against the right to life, the right to education, the right to develop, and the right to health. Thus, more stringently applying international and national law and combining with local wisdom (Balinese Customary Law) in protecting children's rights in the context of preventing ECM can prevent ECM effectively and minimize violations of other children's rights. Moreover, it is believed that the responsibility to reduce and combat ECM not only belongs to the government but also to all stakeholders within the community, such as families, academics, the media, non-profit organizations, entrepreneurs, and customary
Non-Adherence to Human Rights and Humanitarian Laws in the Conduct of Armed Conflict in Yemen
Full text linkTo protect the properties, lives, and dignity of human persons worldwide, the International Humanitarian Law seeks to uphold and promote Human Rights Law and other international frameworks regulating the rights of civilians and parties to armed conflict. The conduct of parties to the armed conflict who have grossly violated the combined provisions of International Human Rights Law and the International Humanitarian Law resulted in the persistence of armed conflict and warfare in Yemen, thereby crossing every access road to humanitarian rights and privileges. The researchers adopt the doctrinal methodology to investigate the status of warfare in Yemen, the provisions of the law on International Human Rights and Humanitarian Law, and the extent to which the parties to the armed conflict in Yemen break such laws. The International Humanitarian Law and the International Human Rights Law regulate the conduct of actors and parties in the armed conflict both in Yemen and the world at large. The finding of this studydemonstrates that all the participants in the conflict in Yemen violate the International Humanitarian Law. Therefore, they are accountable for such violations.The research recommends strict adherence and compliance to both the International Human Rights Law and the Humanitarian Law throughout the armed conflict in Yemen to have lasting peace. Furthermore, accountability for violations committed should be identified, and all actors in the armed conflict should be punished accordingly
Asylum Seekers and Refugee Management: (Im)Balance Burden Sharing Case between Indonesia and Australia
Full text linkSince the 1970s, Indonesia has been acting as a transit country for asylum seekers and refugees to reach Australia and New Zealand. Being a non-state party to the Refugee Convention, Indonesia has become the strategic partner for Australia in managing the issue of asylum seekers and refugees. The two countries have been involved in many bilateral and regional arrangements to tackle the issues. The “Bali process†is one of Indonesia and Australia's arrangements to lead the region in tackling forced migration and refugees. Unfortunately, despite their “common†interests, many of Australia's policies towards asylum seekers have negatively impacted Indonesia in many ways. This paper uses desk study research with a normative approach to analyse nationally and internationally relevant laws and policies. This paper analyses the Bali Process as regional cooperation means of burden-sharing in which Indonesia and Australia play dominant roles while scrutinising how both countries implement the policies within their domestic realms. In addition, the dynamics within the two countries will also be examined to understand how they shape their policies. This paper argues that Indonesia has fulfilled its part by managing these protected persons within Indonesia. However, Australia seems to consistently try to shift its burden to Indonesia as its neighbouring state. By revisiting the Bali Process arrangement, it is suggested that Australia needs to respect its commitment and take any means necessary to keep good relations with its neighbours, including Indonesia
Legal Protection of Work Safety Crimes Victims In Indonesia
Full text linkBetween 2014 and 2018, the Indonesian Ministry of Manpower recorded 89,625 cases of work accidents, and 1,193 of them resulted in death. During this period, 34,075 companies were reported for alleged work safety crimes. From the 2,074 cases, only four have been sentenced to prison. The most interesting issue is that the victims of work safety crimes do not get any kind of restitution or even compensation. This article aims to investigate the legal protection for victims of work safety crimes from the criminal law perspective. The method used is normative qualitative research on primary data, such as work safety legislation, the Criminal Code, and criminal court decisions. As a result, the work safety law stipulates that the purpose of law enforcement on work safety is recovery for victims, repairs and prevention. They are carried out to protect the public interest. Work safety regulations also regulate the qualifications of actions categorized as work safety crimes. Unfortunately, the regulation does not provide a mechanism for resolving work safety crimes. So that the settlement of work safety crimes relies on the general criminal justice system that adheres to retributive objectives in law enforcement. The purpose of law enforcement on work safety cannot be applied because victims do not get restitution or compensation. Thus, to obtain legal protection in accordance with the objectives of law enforcement on work safety, the alternative solution is a criminal policy to establish a special criminal mechanism for the settlement of work safety crimes
Gender Inequality in Social Security on the Basis of the ECtHR Case-Law
Full text linkAs the European case-law shows, nowadays, there are numerous problems in the social sphere. Accordingly, there appears to be a need to study international regulation of equality and current social security problems to find possible solutions to the existing shortcomings and to strengthen human rights protection. The article aims to analyse the universal international regulation of equality and gender equality, in particular, and to study the problems of gender inequality in social security based on the European Court of Human Rights (ECtHR) case law to eliminate this discrimination. The leading research method is a legalistic one. It allowed us to analyse the international legislation on gender equality and to look into the ECtHR case law in gender discrimination in social security. It was found that gender inequality in social security is often a result of prior gender-based discrimination in labour relations. Despite the fact that legal acts protect women in cases of inequality, the analysis of the ECtHR case-law permitted us to conclude that men suffer from gender discrimination as much as women. Therefore, it is suggested to adopt legal acts on the equality of men and women in social security to overcome such discriminative practices at the legislative level. It is also recommended to implement the governmental policy on counteracting gender stereotypes in society. The research results can improve national legislation and international legal acts, further research into equality issues, and develop a methodological base for teaching human rights and social security
Chronic Disease of State Corporatism in Indonesian Village Government
Full text linkThe institutional regulation of the Indonesian village government from the Dutch colonial era (1906) until the Reform Era has practically shown controversy of pros and cons. Through correct regulation, the village should be able to prosper. However, the applied regulation as a tool of social engineering during the inter-period has failed to bring the village to prosper. The legal gaps are whether the applied state-corporatism norms on Indonesia village regulation have met the principles of good local governance. This study aims to provide corrections to the heresy of legal construction of the village regulations. This legal method of study was a nomological type with a statute approach. The technical analysis used was content analysis. The results showed that the legality of the village government status, which is state-corporatism containing in norms of the provision of Number 1, Number 2, Number 7, Article 6 paragraph (1), Article 6 paragraph (1) of the Law 6/2014 is not synchronous vertically to the 1945 Constitution. The results of the legitimacy study also revealed that Articles 12, 19, 19 (b)(c)(d), 69 of Law 6/2014 concerning the Authority and Changes of the Status of Urban Villages (Gesellschaft) into Common-Village (gemeinschaft) implies horizontal disharmony to the Law 30/2014 concerning Government Administration. Therefore Law 6/2014 needs to be revoked and replaced with an organic law derived from Articles 18, 18A and 18B of the 1945 Indonesia Constitution
Legal Policy of Old Wells Petroleum Mining Management Based on Social Justice in Realising Energy Sovereignty
Full text linkIndonesia has the potential for oil from old wells of 10,000 barrels per day, but this potential is not optimally regulated. Hence, its management cannot realise social justice. This research aims to provide a prescription for the distribution of benefits and public participation in managing petroleum in old wells because all provisions for old wells do not accommodate the public interest. This research uses normative legal research utilising a statutory, conceptual, and case approach to analyse the regulation policy related to old wells management. Data were collected by investigating primer and seconder legal material. The results show that the distribution of benefits related to profit-sharing for oil management services at old wells did not reflect justice. Thus, it is causing a lot of illegal mining activities. Moreover, public participation in determining policies is still at the pseudo participation (informing level). Therefore the actual participation has not been accommodated in related regulations of old wells management
Can Judges Ignore Justifying and Forgiveness Reasons for Justice and Human Rights?
Full text linkIn the criminal law system in Indonesia, there are two reasons why an individual suspected of having committed a crime must be released. These two reasons are justifying and forgiveness reasons. In practice, these two reasons are linked to the elimination of criminal acts based on legal justice and human rights. This article discusses the legal consequences when the judge rejects the justifying and forgiveness reasons that can eliminate the sentence. The method used in this research is normative juridical by analysing norms, principles and rules of law with a case approach. As a result, this research shows that judges in practice have the authority given by law to determine whether an action can be categorised as justifying and forgiveness reasons that eliminate punishment by referring to the principles and legal regulations for justice and human rights. However, when the judge ignores these two reasons due to considerations of lack of justice and respect for human rights, this practice can be carried out by the judge with the consequence that this decision will cause harm, suffering and misery for the accused. This article argues that to protect the public interest from wrong decisions is necessary to reform the Criminal Procedure Code (KUHAP) to provide objectivity, honesty, and justice that rely on legal principles and rules
Exercising No Harm Rule: Claims for Damage and Loss Due Climate Change Effects
Full text linkThe act of utilising all the resources owned by a state, including natural resources, is the right of every state. However, its use is prohibited if it causes harm to other states. This is then referred to as the principle of no harm rule in international law. Therefore, each state is responsible not for causing damage to other States' environments or areas outside the limits of its jurisdiction. This article will analyse the development of the no harm rules and its application model for claiming state responsibility. As normative research, it used secondary data as the main data, and the primary, secondary and tertiary legal materials were analysed qualitatively. In discussion, this principle has long existed as customary international law to mitigate transboundary pollution. In the case of the environment in general, many studies have applied this principle. However, due to the uniqueness of the climate change issue, evidence and proof of the impacts caused cannot be used as the basis for a lawsuit like ordinary environmental cases. Based on the discussion and simulation conducted, it is concluded that the no harm rules principle can be applied to climate change issues. However, this principle is not satisfactory and has limitations in its application
Foreign Migrants Trespassing in Sabah Forest Reserves: A Legal Discourse
Full text linkAccording to Sabah Forestry Enactment 1968, Yang di-Pertua Negeri Sabah is given the power to reserves forests for various purposes including commercial, protection, domestic and others. Sabah Forestry Department is entrusted with proper and efficient planning, and implementation of State forest resources management (SFM) to comply with the sustainable forest principles. It achieves to manage forest resources towards sustainable and profitable forest governance. However, Sabah forest reserves were threatened by illegal trespassing by foreign migrants to possess forest produce unlawfully and to occupy State land illegally. This article aims to expose the causes of the invasion of forest reserves by foreign migrants, the offences committed by foreign migrant activities in the forest reserves, violation of specific legislation such as the Immigration Act 1959/63 and the Forest Enactment 1968. The qualitative legal research methodology was used to understand the issues at hand, the existing applicable laws and the legal implications for such illegal activities in these forest reserves. Secondary data found in the legislation, journals, annual report, and law publication were collected, reviewed, analysed, and discussed to understand its legal implications better. Thus, efforts to expose these illegal activities by foreign migrants is essential to ensure Sabah Forest Reserves can continuously be maintained and not destroyed at the hand of illegal foreign trespassers. Employers should also be made responsible for their involvement in trafficked or smuggled illegal migrants as workers and simultaneously, conduct illegal activities to deceit the State Forestry efforts and developmental planning in Sabah