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Analysing Discrimination based on Genetic Information: Review, Critique and Proposal
No full textThis paper analyzes and critiques existing literature on discrimination based on genetic information collected during genetic tests of individuals and the legal issues attached therewith. Genetic variations, which can lower or raise disease risk, result from the inheritance of parental genes. Subjecting individuals to stigmatization based on their unique ancestry or genetic status raises legitimate concerns. The literature review reveals that the issue of discrimination based on genetic information has occurred in countries like the United States and Canada. Accordingly, concerns regarding new forms of discrimination arising from the collection of information during genetic testing have grown over the decades in the wake of technological advancements in biotechnology, health, and allied sciences, as several studies have revealed. On the contrary, more material sufficiency in India necessitates consulting data from various disciplines. A conceptual framework is proposed to examine the theoretical foundations of non-discrimination provisions, compare genetic information non-discrimination legislation in the United States and Canada to India, and evaluate the practicality of implementing such laws in India. The initial testing of this framework suggests that due to insufficient legislation, there may be a need for enforceable measures to mitigate genetic information-related discrimination in India. The research problem requires qualitative research to gain an in-depth comprehension of experiences, phenomena, and context. This paper makes two main contributions: establishing a comprehensive background to allow comparisons by scholars and policymakers on the matter and helping to further the debate on the subject to generate value-based research regarding the ethical, legal, and social impacts of genetic research and anti-discrimination laws.KEYWORDS: Non-discrimination, Genetics and law, Literature review, Genetic discrimination
Exploring Efficacy: A Study of Simple and Complex Approaches to Divorce Mediation in Indonesian Religious Courts
Get PDFThe rising global divorce rate is reshaping the landscape of family dispute resolution, moving away from the adversarial or litigation system toward an alternative dispute resolution known as mediation. This global trend is also observed in Indonesia where the Supreme Court has mandated the use of mediation in civil cases. "Everybody wins, nobody loses" as the primary slogan of mediation emphasizes a win-win outcome for all parties involved, avoiding any losers. However, assessing its efficacy in handling divorce cases in Indonesia becomes crucial. This is mainly because the settlement rate has been discovered to be low in Indonesia since the mandatory implementation of court-annexed mediation for almost two decades compared to other countries such as Australia and the United States. In both countries, settlement is not only based on agreements but also on the process that satisfies the parties. Therefore, this study aims to examine the conceptual issues underlying the low effectiveness of divorce mediation by questioning agreements as a measure of divorce mediation effectiveness. This study uses the sociolegal framework to critique the Supreme Court Regulation 1/2016 regarding Mediation in court and its dynamics in divorce cases. Moreover, courtroom study is applied to observe the mediation process. The results showed that the success of mediation revolves around the number of agreements reached by the parties and the process did not focus on the characteristics of divorce cases, thereby considered not suitable for all cases. Furthermore, the court-annexed mediation regulation creates ambiguity between the use of marital mediation to reconcile the parties and divorce mediation to proceed post-divorce agreement or both.Keywords: Effectiveness of Mediation, Divorce Mediation, Religious Courts
Navigating Human Rights in Indonesia and Beyond
Get PDFThe article is an editorial that supposedly does not need an abstract
Political Participation of Minors in India: A Critical Perspective from the Prism of the UNCRC
Get PDFThe participation of children in a political demonstration has proven to be an enduring issue in India owing to the public agitations against the Citizenship Amendment Act and the farm laws, with the latter being withdrawn recently. Under the hegemonic liberal paradigm, the underlying risk is that civil and political rights may be envisaged as the exclusive domain of adults. Children are merely viewed as apprentice citizens who do not have the capacity to exercise rational choice. The operative presumption is located in a binary wherein children are pliant beneficiaries, and the state is a benign caretaker in charge of determining their best interests. It thereby negates children’s autonomy and reduces them to disenfranchised spectators in an adult-centric social fabric. Moreover, the protectionist approach enables the state to evade its obligation of preserving democratic spaces wherein minors can protest safely and make their voices heard. State functionaries and judicial authorities in India have also been complicit in adopting an infantilising stance. In this paper, the author makes a case for recognising the agency of children such that they can exercise their ‘autonomy’ right to political participation. This paper incorporates diverse perspectives in existing child rights literature, including those emanating from the Global South, to argue in favour of an epistemic reorientation in child rights law discourse. Moreover, the author relies upon key interpretations of UNCRC provisions made by the Committee on the Rights of the Child and argues for facilitating a participative environment where children can exercise their civil and political rights. The ‘best interests’ test should not be wielded as a sword from an adult standpoint to curtail children’s rights in the political domain.Keywords: Children's Rights, Citizenship Act, Political Participation
Gig Economy: Unleashing the Potential of Digital Banking in Indonesia's Employment Regulations
Get PDFThe gig economy has transcended mere trend status, emerging as a resilient force that promotes economies, even in the face of adversities like the COVID-19 pandemic. The gig economy not only impacts employment law but also intersects with regulations governing digital banking. Surprisingly, despite the exponential growth of gig workers in Indonesia, little attention has been given to comprehensively elucidating the legal interplay between employment law and digital banking. Therefore, this research aims to analyze the potential and legal challenges posed by the gig economy's development in the Indonesian economy. This research uses the Global South perspective as the gig economy offers unique challenges to an environment where issues in employment are already a problem. Furthermore, it examines the utilization of digital banking as a mechanism to address the pressing issues faced by gig workers. The potential limitation of this study is the lack of comprehensive data and empirical evidence, which may restrict the depth of analysis and the generalizability of the findings. The rationale of this legal study is to address the lack of comprehensive understanding regarding the legal interplay between employment law and digital banking in the context of the gig economy in Indonesia and bridge the gaps to connect these concepts under the legal context. Employing a normative legal research method with a statutory approach, this study offers a conceptual analysis of these intertwined concepts and their alignment with Indonesia's existing positive laws. The findings reveal significant connections between employment law and digital banking yet highlight the absence of well-defined legal boundaries within Indonesia's legal framework. Consequently, this research catalyses a novel branch of legal development in Indonesia, focusing on the gig economy and its profound implications.Keywords: Digital Banking, Employment Law, Gig Economy
Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
Get PDFVarious attempts to accommodate a child's opinion in courts have proven successful, and this participation has been increasingly regarded as integral to children's rights. However, the issue remains problematic, particularly in the Global South countries like Indonesia. This paper examines the legal and regulatory framework of protecting children in Indonesia to comply with children's right to opinion and how this right is implemented. Then, it demonstrates the significant role of forensic science in complementing legal inquiry to consider a child's opinion in court. Using policy-oriented study and doctrinal research with qualitative analysis and, to some extent, a comparative perspective, this paper elaborates on Indonesia's experience in protecting children's right to opinion with legislation in India, particularly dealing with child sexual offences. This study shows that Indonesia's legal and regulatory framework of children protection had not specified to elucidate children's right to an opinion, particularly in the Child Protection Law, the primary legal basis for children protection. Also, Indonesia is yet to have a robust and consistent practice of human rights-based instruments considered in the court, indicated by a lack of comprehensive understanding in law enforcement to implement this right. While the interpretation in law enforcement is essential to be optimised toward child-oriented resolution, taking the child's opinion in court promotes human rights practice in Indonesia. Compared to adults, children are complex, particularly in a case of a child victim of rape-related pregnancy. The forensic approach can be an alternative by involving forensic experts in courts to consider a child's psychology and physical condition.Keywords: Children's Rights, Forensic Science, Indonesian Courts, Right to Opinion
The Tension Between Combating Terrorism and Protecting the Right to a Fair Trial in Indonesia
Get PDFA consistent criticism of the Indonesian criminal justice system indicates its dysfunctional judicial system plagued by systemic corruption and government interference. Given the high profiles of terrorism offences and their strict punishment, it is essential to maintain consistency in sentencing decisions for these crimes. However, there is a significant lack of evidence-based studies of sentencing in Indonesian courts, and none specifically related to terrorism offences. The aim of this study is to analyse the application of the right to a fair trial in sentencing terrorism offences in Indonesia through the interpretive lens of Southern criminology. This study takes a multi-dimensional approach of historical, legal, and empirical analyses to provide an in-depth understanding of factors that affect sentencing decisions in terrorism cases. First, the historical analysis explains that prosecutions for terrorism today include radical Islamists, minority extremists and separatist groups willing to resort to violence against the state and society to achieve their goals. Second, the legal analysis highlights how the existing sentencing regimes provide limited guidance for judges when determining the appropriate punishment for terrorist offenders, frequently leading to prison sentences exceeding 10 years. Third, qualitative analysis further explains that judges use their discretion to avoid the minimum mandatory sentence in specific circumstances, such as in the case of juvenile offenders. A Southern criminology approach helps explain terrorism sentencing in the broader historical, legal, and socio-political contexts. Ultimately, the way laws are written and how judges determine the sentences of terrorism offences result from the persistent impact of colonialism, authoritarianism, and the 'war on terror' discourse. The case study reveals violations of international human rights rules and standards. Terrorism sentencing practices also exemplify a troubling trend where national security trumps the fundamental procedural rights of terrorist offenders.Keywords: Sentencing Decisions, Southern Criminology, Terrorism
No Choice but Welcoming Refugees: The Non-Refoulement Principle as Customary International Law in Indonesia
Get PDFThe non-refoulement principle requires each country to consider refugees and asylum seekers in their country of origin if they are subject to persecution and threaten their lives. As a geographically strategic country, Indonesia has been a significant crossroad for international refugees and asylum seekers often consider Indonesia their temporary destination. Moreover, the complex situation of international refugees has encouraged to reinterpret of the principle of non-refoulement into various national measures and domestic policies, given that Indonesia is deemed a transit country for refugees and has not ratified the 1951 Convention on the Status of Refugees. This paper aims to analyse the concept of refugee protection under international law, particularly the non-refoulement principle and investigate the application of the non-refoulement principle in Indonesia. This study employed normative and empirical legal research with statutory, conceptual, and comparative approaches. This study confirms that the non-refoulement principle is part of jus cogens norms in international law but does not fit in its application. Indonesia has inconsistency in upholding the non-refoulement principle into the binding normative rules. Refugees have received far less attention from the Indonesian government due to insufficient infrastructure and financial allocation. Moreover, the existing executive regulations do not provide effective enforcement since these regulations have a lower position in the hierarchy and cannot have deterrent sanctions. Hence, ratification of the 1951 Convention is urgently needed by Indonesia to guarantee the protection of refugees within its jurisdiction. At the regional scope, Indonesia can encourage ASEAN countries to adopt good practices in the European Union to set sharing quotas to ensure that not most refugees escape to Indonesia.Keywords: Customary International Law, Indonesia, Refugees
Regulatory Limits of Empowering Biogas Digester Integrated with Indonesia’s Local Wisdom
Get PDFThis paper analyses the international and domestic regulatory framework for managing waste-to-energy in Indonesia’s rural areas to support climate mitigation. The countryside is known to be the most significant contributor to organic waste due to the high productivity of the agricultural and livestock sectors. In contrast, organic waste is left without proper management and contributes to global greenhouse gas emissions. Indonesia has agreed to contribute to the Paris Agreement to reduce emissions by 29% in 2030 or 41% with international assistance, but its follow-up to switch to renewable energy appears insufficient. This study uses a socio-legal approach to unpack the waste-to-energy problems in one of Indonesia's villages: Tawangsari Village, Pujon District, Malang Regency, East Java Province. The study results reveal that the biogas program launched by the government through the "Program BIRU" was not aligned with local conditions in Tawangsari Village because not all farmer households had sufficient land to build a fixed dome. Thus, it is necessary to build a community-based centralized biogas digester. However, there are no provisions in the regulations governing the mechanism for funding renewable energy development in villages, as mandated by Article 20(2) of the Energy Law. The village can use village funds to carry out development based on local wisdom, but the limited number of village funds causes limited growth. There are no standard rules for bio-slurry processing and maintenance of biogas digesters to ensure the sustainability management of biogas. This paper recommends enacting national and/or domestic regulations to support the energy-independent village program, aligning with the government's commitments to reduce global emissions from the agricultural and waste sectors.Keywords: Climate Mitigation, Energy Transition, Regulations, Small-Scale Biogas
Shareholders' Claim for Reflective Loss in International Investment Agreement through ISDS Arbitration Practice
Get PDFShareholders’ claim for reflective loss appears to be commonly accepted by the Investor-State Dispute Settlement (ISDS) tribunals. Several international investment agreements (IIAs) have construed the condition of losses or damage under IIA to address the shareholder reflective loss (SRL) issue. Nonetheless, through the ISDS decision, the interpretation appears to be disparate. This article will aim to analyze the status of SRL in IIA through conditions of losses or damages as investment dispute characteristics and IIA text formulation to limit such conditions in addressing SRL issues through juridical normative and comparative study with a descriptive-analytical characteristic. Foreign direct investment regimes driven by the IIA show how important the IIA’s role is in providing adequate protection of investment including dispute mechanisms set through. The author will use the juridical and comparative methods by reviewing the existing statutory and case laws. The condition of loss or damage under IIA also appears to cover SRL. The limitation through the scope of allowed claims regarding whose losses, have been interpreted by several tribunals to limit a direct claim for SRL. However, the interpretation seems to be inconsistent with the other tribunals. An explicit text formulation and applying the loss-based general rule into IIA will then help to address consistent and genuine outputs of the applicable rule to limit the condition of losses or damage pertaining to the claim for SRL. In conclusion, the condition of losses or damage led the tribunal to allow the claim for SRL, yet through a limitation of the condition, the claim for SRL will be construed with specific requirements and procedures to avoid intersectoral issues. State parties in negotiating IIA are suggested to consider limiting the condition of losses or damage by adopting text formulation that led the ISDS tribunal’s interpretation to a genuine meaning of the applicability rule which the parties intended to, specifically, regarding investor’s right to claim SRL. Thus, the risk of harm that the host state suffers will be avoided.Keywords: Foreign Direct Investment, International Investment, International Law