Lentera Hukum
Not a member yet
210 research outputs found
Sort by
Equality, Affirmative Action, and Economically Weaker Sections in India
Get PDFThe Indian Parliament has brought about various measures of positive discrimination to address social inequalities. One such measure taken by the Indian Parliament was amending the Constitution of India in 2019, creating a category of ‘economically weaker sections’ to make special provisions for them. This article aims to assess the politico-legal issues surrounding the policy of reservation for the economically deprived classes. The article employs the doctrinal method to study the policy and critically analyses the Janhit Abhiyan v. Union of India (2023) 5 SCC 1 judgment where the Supreme Court of India upheld the constitutionality of the Constitution (103rd Amendment) Act 2019. The article analyses the arguments of parties and opinions of the Court against two major constitutional principles – the promotion of substantive justice by relying upon a comparative conception of equality and securing the identity of the Constitution by adhering to the basic structure doctrine. This paper argues against restricting the application of basic structure doctrine to cases where the ‘essence’ of the structure has been stripped. Such restriction may curtail the ambit of application of the doctrine, and it may adversely affect the enjoyment of fundamental rights. The interpretation that reservations are an exception to the principle of equality, rather than an extension thereof, runs contrary to the notion of equality conceived by the Constitution and grants them a contingent legitimacy. If the ‘essence test’ is accepted for the application of basic structure doctrine, then the perception of reservation as being non-essential to equality also protects such policy measures from basic structure review.KEYWORDS: Equality, Reservation, Economically Weaker Sections, Basic Structure Doctrine, Affirmative Action
The Indonesian Outsourcing Workers' Rights in the Tourism Business Sector: Toward Better Protection?
Get PDFThe problem of outsourcing workers extends to the tourism industry. The unique challenge of 'seasonality' makes it more difficult to protect the outsourcing workers' legal rights in the said sector. The research examines the outsourcing regulation in Indonesia by referring to the Job Creation Law, by questioning whether the existing regulations provide prominent legal protection for outsourcing workers, especially in tourism sectors, and how the future law allows for improved protection. The research method used is normative legal research with statutory and legal conceptual approaches. The results of the study show that the amendment of the Manpower Law incorporated into the Job Creation Law and its implementing legal instruments significantly changed outsourcing regulation. As the Job Creation Law has abolished Article 64 of the Manpower Law, the scheme established by the Constitutional Court to prevent companies from exploiting workers in their decisions has become vague in the Job Creation Law. Following global practices, the country can implement a flexible workers policy while simultaneously protecting their rights which Indonesia must adopt.Keywords: Outsourcing, Rights Protection, Tourism Business
The Interplay of Banking Development and Legal Reforms: A Comparative Study of Mortage Rights Enforcement in Indonesia and India
No full textThe enforcement of mortgage rights plays a pivotal role in ensuring economic stability and protecting citizens' financial interests. Within the broader context of economic governance, the banking sector acts as a fundamental pillar, driving economic growth and safeguarding financial certainty. This study examines the regulatory framework governing the enforcement of mortgage rights in Indonesia, emphasizing its impact on financial security and the reduction of Non-Performing Loans (NPL). Through a normative juridical approach, this research analyzes the existing legal provisions in Indonesia and explores avenues for enhancing the mortgage enforcement process. In addition to legal analysis, philosophical discourse is employed to understand the practical challenges in enforcing mortgage rights. A comparative approach focuses on the Indian legal system, where mortgage rights can be executed without court intervention. India’s approach has effectively reduced Non-Performing Assets (NPA), offering valuable insights into Indonesia’s legal reform efforts. The study suggests adopting a comparable framework in Indonesia could streamline mortgage enforcement procedures, reduce litigation, and enhance financial stability. This research aims to contribute to Indonesia’s broader economic management and governance strategies by proposing legal reforms and promoting a more efficient, competitive, financial security, and equitable financial system.KEYWORDS: Legal Reform, Banking, Morgage Rights, Indonesia, India
Geographical Indication & Gastro-Diplomacy as Nation Branding: A Perspective from Indonesia
No full textIn response to the success of “Eat, Pray and Love†in 2010, Paul Rockower highlighted Indonesia's great opportunity to carry out a robust culinary-based public diplomacy campaign. As a specialist in culinary diplomacy, he noted this to be the key to help Indonesia to enhance its longstanding reputation as an exotic culinary locale. This paper aims to analyze the opportunities and challenges in implementing geographical indication (GI) as part of gastrodiplomacy strategies, and how it impacts the strengthening of Indonesia’s national branding. This paper finds that, to effectively integrate GI protection into the gastrodiplomacy strategy, it is necessary to take strategic steps that follow the characteristics of GI as IP with a collective dimension—through a series of collective action stages, using an institutional approach. Although the collaboration is time-consuming, involving different stakeholders (such as local producers, organizations, research institutions, the local and central government, private sectors, communities, and other institutions) is the key to integrating GI protection into gastrodiplomacy strategies.KEYWORDS: Gastrodiplomacy, Geographical Indication, Nation Branding
The Tendencies of Cryptocurrency Policies in Indonesia: Taxation and Investment Law Review
No full textCryptocurrency has set intriguing and innovative trends in investment amidst the fluctuating global economy following government policies. This research aims to investigate the trends of policies of cryptocurrency in Indonesia, seen from the perspective of taxation and investment laws. Low tax charged in Indonesia is seen as relaxation by investors and cryptocurrency users, while the trends in legal policies concerning investment are experiencing hyper regulations in legislative products set to assure investors, in comparison to those of other countries. These trends attract some attention from investors and cryptocurrency users from abroad. This research is a unique offering that will illustrate which countries are suitable and friendly for businesspeople to carry out crypto business activities. The methodology used in this study is normative research with a conceptual approach and comparative law. The research results are expected to shed light on foreign investors wishing to invest their money in cryptocurrency businesses by considering the low tax from the perspective of current taxation law in Indonesia compared to those in Canada, the United States, and Singapore. According to the details of taxation in Canada, the United States, and Singapore, it is obvious that Indonesia gives ease to foreign cryptocurrency investors in Indonesia from the aspect of taxation law. The countries compared seem to charge very high taxes for cryptocurrency users and businesses in investment cryptocurrency. This comparison gives easier access to foreign investors to invest their assets for the development of cryptocurrency businesses and companies in Indonesia by considering the amounts of taxes imposed on cryptocurrency businesses and users. Indonesia makes it easier for foreign cryptocurrency investors in Indonesia compared to Canada, the United States, and Singapore from a tax law perspective. In terms of investment regulations, Indonesia has broader laws and regulations compared to other countries, where the investment process involving cryptocurrency businesses in Indonesia receives sufficient attention from these laws and regulations.KEYWORDS: Cryptocurrency, Investment Law, Taxation Law
Artificial Intelligence in Indo-Pacific: Quo Vadis International Humanitarian Law and Regional Peace and Security in Southeast Asia
Get PDFThe use of Artificial Intelligence in the military is like two sides of a coin. It can provide convenience and aid in military operations but has the potential to hinder military operations. Dangerous and potentially catastrophic for humanity will be inevitable as no restrictions on its use. The United States, China, Australia, Japan, and India are examples of nations whose militaries have developed artificial intelligence technology. Geographically, Southeast Asia, which is located in the middle of these nations, will experience a significant impact due to its tight maritime borders if there is no international consensus on the military application of artificial intelligence technology. An autonomous or autonomous system to operate this technology will reduce the amount of human control and allow it to operate without any human intervention. It will be a threat to the application of the fundamental principles of international humanitarian law, such as the distinction principle, and proportionality principle. Where these principles are tightly intertwined with human command and control in making decisions regarding the execution of attacks. The article employs normative legal methodology. Furthermore, this paper endeavours to assess the pertinence of principles in international humanitarian law during the era of the artificial intelligence arms race. It also delves into the contribution of ASEAN in upholding stability, peace, and security in the Southeast Asia region, thereby reinforcing the importance of this research. This research emphasises the importance of aligning the progress of artificial intelligence in military contexts with core principles of international humanitarian law. It underscores the need for ASEAN to safeguard regional peace and security by establishing a novel regulatory framework that outlines restrictions on the development and deployment of artificial intelligence for military objectives.Keywords: Artificial Intelligence, International Law, Peace and Security, Southeast Asia
Permanent Sovereignty vs. International Obligations: A Lesson Learned from the DS 592
No full textThis research analyses Indonesia's policies related to downstreaming and restrictions on raw nickel exports that have caused international debate, especially the European Union which complained against Indonesia to the World Trade Organization (WTO) in Dispute Settlement 592 (DS-592). The study explores Indonesia's position as a WTO member that is being questioned for its policy of banning nickel ore exports to the European Union, and examines the DS-592 ruling in relation to the permanent sovereignty debate. This article uses a normative juridical method with doctrinal, comparative, and case approaches. The results show that Indonesia has permanent sovereignty over its nickel ore guaranteed by UN Resolution 1803. Therefore, Indonesia must exercise this sovereignty with due regard to international obligations. Indonesia should learn from China's export regulations as it prioritises export restriction policies rather than export bans. By applying China's approach, Indonesia can prevent the problems that occurred in DS 592. However, a series of nickel downstream policies implemented by Indonesia have violated the provisions of the WTO Agreement. This article also explains that the vacuum of the Appellate Body does not negate the EU's authority to retaliate against Indonesia. This article concludes that Indonesia must implement a policy determining the percentage of downstream nickel ore, as well as nickel ore that will be exported. This conclusion has resulted in the theoretical idea that no sovereignty can be exercised in violation of the country's international obligations. Thus, each country must be able to establish policies that can balance national interests with international obligations. KEYWORDS: Export Restrictions, International Obligations, Nickel Ore, Soverignty, WTO
Countering Hegemony in Legal Academia in Global South: A Critique of Upendra Baxi’s Legacy
No full textSocial Sciences are branches of science that deal with the study of human behavior in any social or cultural setting and demand to have an evolutionary interpretation of human behavior. Here, the consideration of changes in socio-cultural settings differentiates its scientific method from a traditional understanding of pure science. However, the impact of scientific imperialism has led to a universally accepted idea of supposedly valid knowledge even in social sciences such as legal sciences, where positivism and its methodological mantras still dominate. Moreover, scientific imperialism is achieved, enabled, and valorized by what Thomas Kuhn called “paradigm.†This paper argues that Upendra Baxi’s contribution to Indian legal academia is immense. Nevertheless, his legacy has created its own paradigm that has somewhat colonized the imagination of Indian legal academia. In particular, we seek to critique the extent to which it has been widely accepted as the universal paradigm of the Indian legal system and, by proxy, the legal education system of India. The ideology has become hegemonic, being glorified, celebrated, and studied by prominent scholars and Indian Supreme Court judges. This is, of course, much deserved. Yet, one may also need to critique the erasures and silences within this “Baxism paradigm.†It is intriguing to see why there is no influx of curiosity about venturing beyond that paradigm. Why does it seem to be accepted as the universal paradigm that is timeless, boundless, and edgeless? By deploying the idea of hegemony from the works of Gramsci and also using the works of Foucault, Kuhn, and Santos, we have tried to identify the creation of abyssal thinking as influenced by “Baxism†and how it can suppress the creation of new knowledge.KEYWORDS: Legal Pluralism, Epistemology of Knowledge, Global South
Paradigm Shift of Death Penalty Regulation in the New Criminal Code (KUHP) of Indonesia
Get PDFThe arrangement of death penalty in the new Criminal Code (KUHP) raises two different views between those who defend and reject death penalty. In this regard, this paper aims to find the reasoning for the retention of death penalty in the new Criminal Code, which was passed in 2022. This paper will also discuss what has caused the shift of death penalty allocation, from its position as a main to an alternative punishment with ten years’ probation period. The death penalty regulation in the Dutch Criminal Code is no longer in accordance with the development of punishment, so it requires a renewal. In the new KUHP, death penalty is the last resort and is imposed alternatively with a ten-year probation period. If the convict shows a good and commendable attitude during the imprisonment, then the death penalty can be changed into life imprisonment or imprisonment for a maximum of twenty years. The arrangement of a ten-year probation period is a middle way to accommodate views that reject and support the death penalty, which demonstrates the essence of shifting the allocation of death penalty to an alternative punishment in Indonesia.KEYWORDS: Paradigm shift, Criminal Punishment, Death Penalty, Legal Reasoning, Indonesia