Padjadjaran Journal of Law
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Traditional Knowledge Management: Community Understanding and Government Strategic Steps to Strengthen Aceh's Economy
Full text linkPolicymakers worldwide find the idea of traditional knowledge as local wisdom intriguing. Traditional knowledge is derived from society's intellectual activities developed based on experience and observation. The people of Aceh, one of Indonesia’s provinces, have diverse traditional knowledge related to geographical indications. It presents a potential for economic improvement. This study used empirical legal analysis methods with primary and secondary data to investigate the understanding and management of traditional knowledge in Aceh. The primary data were obtained through respondent interviews, while the secondary data were gathered through a literature study. The collected data was subsequently verified, categorized, reduced, checked for validity through Focus Group Discussions, and analyzed. The results show that the people of Aceh have minimal understanding of traditional knowledge supporting geographical indications. The considerable economic importance of regional indications and traditional knowledge was poorly understood. Furthermore, the district and Aceh governments lacked strategic measures for managing traditional knowledge, which could impede economic improvement. On a national level, Law Number 20 of 2016 on Trademark and Geographical Indications highlights that natural and human factors impact geographical indications. The Indonesian government had prepared Government Regulation Number 56 of 2022 on communal intellectual property has emphasized that traditional knowledge is an integral part of Communal Intellectual Property And, Minister Regulation of Law and Human Rights Number 13 of 2017 on Communal Intellectual Property Data states that traditional knowledge must be recorded and documented to avoid claims by outside parties and as a basis for the legal protection system for traditional knowledge. The regencies and Aceh governments' lack of strategic mechanisms for managing traditional knowledge may also hamper economic development
Unraveling Legal Antinomies: Key Insights from the 2024 Simultaneous Regional Head Election
Full text linkIn 2024, Indonesia held simultaneous regional head elections on the same day across the country, in contrast to the traditional patterns of regional head elections held in succession. Simultaneous regional head elections were held to increase stability and efficiency. However, there are several drawbacks, such as creating a vacancy in regional head positions that necessitates the appointment of an acting head and even forcing some permanent regional heads to step down before their terms are up. This study examines the contradictions in the 2024 simultaneous regional head election policies using the antinomy perspective. The study reveals two fields of legal antinomies under the policy of simultaneous local elections: norms and principles. This conclusion comes from normative secondary data analysis utilizing statutory and conceptual approaches. The legal antinomy on norms arises from a contradiction within the Regional Head Election Law. Article 201 Paragraph (8) orders simultaneous local elections for government stability. On the other hand, Paragraph (9) allows the appointment of acting heads of regional government, which has the potential to cause administrative, political, and social instability. In this context, a paradox emerges between the intended goal of stability and the potential for instability resulting from the policy. The legal antinomy on principles appears in the conflict between budget efficiency (expediency principle) and legal certainty. The goal of saving costs clashes with the principle of legal certainty because the fixed term of office for elected regional heads is set by law. This study helps better understand the challenges of moving from conventional to simultaneous local elections
Indonesian Constitutional Court’s Moral Legitimacy: A Dworkinian Rights-Based Defense
Full text linkThis study discusses the moral legitimacy of constitutional adjudication in general, with a particular focus on the Indonesian Constitutional Court. Moral legitimacy is crucial as it justifies the necessity of Constitutional Court—not merely because of its existence is stipulated by the 1945 Constitution. This issue is also discussed in response to the legislature’s (the People’s Representative Council) adverse reactions to the Constitutional Court, including efforts to weaken its authority. Additionally, moral legitimacy is also related to the well-known critique of constitutional adjudication: the counter-majoritarian difficulty. This study draws on Ronald Dworkin Rights-Based Theory, which defends constitutional adjudication as a means of safeguarding individual rights. Accordingly, the moral legitimacy of the Constitutional Court is framed as Dworkinian Rights-Based Judicial Review. From this perspective, constitutional adjudication serves as a shield for minorities against the dangers of majoritarian democracy and the tyranny of the majority. The Constitutional Court is therefore indispensable, as it upholds individual rights against legislative power, based on the principle of equal concern and respect
Reconceptualizing Local Wisdom Values in Regulations for Micro and Small Enterprises in Maluku to Support Local Economic Development
Full text linkThis study seeks to examine and evaluate the efficacy of implementing the principle of "Bhinneka Tunggal Ika" (unity in diversity), which embodies local wisdom, in the governance of micro and small enterprises in Maluku Province as an aspect of local legal development. The principle of Bhinneka Tunggal Ika needs to be incorporated into laws and regulations, particularly regional legal mechanisms related to micro and small enterprises, in compliance with the Law on the Formation of Legislation. In Maluku's legal landscape, many regional legal products pertaining to micro and small enterprises fail to incorporate the principles of local wisdom into their content. This socio-legal investigation study integrates empirical legal research methods with doctrinal legal research. Primary and secondary data were gathered through interviews and literature reviews. The study results suggest that the legal protection provided to micro and small enterprise owners in Maluku has been ineffective. In addition, the legal content of regional legal products in Maluku fails to adequately account for value derived from local wisdom, as required by statutory provisions. Thus, it is necessary to reconsider incorporating values from local wisdom into various regional legal instruments related to developing and empowering micro and small enterprises in Maluku. This approach will support regional flagship products while facilitate the growth within the local economy, preserving the values of local wisdom in the face of global developments
The UK-Rwanda Migration and Economic Development Partnership Based on International Refugee Law
Full text linkOn April 14, 2022, British Prime Minister Boris Johnson announced intentions to deport Rwandan asylum seekers arriving by small boats. Under this arrangement, individuals who sought protection but were later deemed unsuitable and undesirable by the UK would be re-transported to Rwanda, where Rwandan authorities would review their claims. This Policy was rejected by several asylum and refugee organizations, which argued that it was inhumane and would only imprison asylum seekers before sending them to countries where they faced torture or persecution. This study employed sociolegal analysis and combined doctrinal research with an empirical approach. It used secondary sources, such as government statements, reports, articles, and news reports. The result explains the UK and Rwanda Memorandum of Understanding on Migration, the development of the policy, and how international law view it. This study provides evidence that the UK has violated international law by implementing the partnership plan with Rwanda. The bilateral transfer arrangement is incompatible with or violates Article 31, 33 (1) of the 1951 Refugee Convention; and Article 3 of the European Convention on Human Rights. Furthermore, Rwanda has failed to meet the conditions for accommodation and to ensure its safety from deportation, persecution, or other human rights abuses committed by its residents and the government
Democracy Crisis and the Rise of Datacracy
Full text linkThere is no permanent constitutional and political-legal system. Scientists also predict that the phenomenon of the rise of datacracy with big data and algorithms will replace the democratic system. In this research, the author aims to answer the following questions: (i) Why is democracy bound to be replaced by datacracy? (ii) what alternative options can be proposed to bridge the legal and political implications that might occur if datacracy replaces democracy? The author uses literature studies and an interdisciplinary approach to critique and offer ideas in this study. It is proposed, among other things, that datacracy will not eliminate people's sovereignty; instead, it will only narrow down democratic instruments such as people's representatives and political parties because they will no longer be needed. Such representative democracy is likely to become obsolete because the people will be able to actively participate in conveying their aspirations directly, without going through the people's representative system, by inputting their needs, interests, and various problems through the datacracy platform.DOI: https://doi.org/10.22304/pjih.v11n1.a
Exploring Legal Protections for Platform Workers in Malaysia: A Human Rights-Based Perspective
Full text linkPlatform work has gained significant recognition due to the rapid growth of the digital economy, which offers new opportunities for workers. However, inadequate regulatory frameworks in Malaysia have led to various human rights concerns, particularly regarding the protection of workers' rights, such as social security, fair remuneration and safe working conditions. Furthermore, the challenge of providing worker protections must be balanced with the flexible nature of the gig economy. Thus, this study explored the evolving legal landscape surrounding the protection of platform workers’ rights in Malaysia from both legal and human rights perspectives. It examines the role of business and human rights in finding the delicate balance between economic progress and protecting workers’ fundamental rights, emphasizing the role of regulation. This study adopts a qualitative approach through review of existing literature, including academic research, reports, and relevant legal documents, to provide a comprehensive understanding of the issue. Therefore, this study underscores the urgent need for robust legal frameworks and regulatory measures to safeguard the rights and welfare of platform workers in Malaysia through the integration of corporate responsibility to respect human rights and to establish mechanisms that guarantee fair remuneration, job security, social protection, and avenues for workers’ representation and collective bargaining. The findings of this study are expected to contribute to the growing body of literature on platform work and serve as a basis for policy recommendations and advocacy efforts to improve the rights and working conditions of platform workers in Malaysia
Questioning Food Security in Green Constitution Conception: Realizing Sustainable Development Goals (SDGs) in Indonesia
Full text linkResearch on the constitution, food security, and sustainable development have become widely explored. However, issues related to the legal framework in the context of a green constitution remain unresolved. This is particularly evident in Indonesia’s efforts to address the food crisis, which has led to substantial deforestation. Therefore, this research aims to analyze the implementation of food security efforts in line with a green constitution in Indonesia. Despite the potential for adopting sustainability for future generations, there is hesitance in implementing articles related to a green constitution in food security activities. This legal issue is examined as normative research using conceptual and comparative methods and deductive logic. The results show that, firstly, food security is a pillar in achieving Sustainable Development Goals (SDGs), necessitating the correction of erroneous paradigms to optimize the strategic project. The urgency of the implementation in line with sustainable development is based on five fundamental points: conservation of natural resources, environmental protection, social welfare, sustainable economic growth, and fulfilling future needs. Secondly, legislation firmly establishes the significance of sustainable development principles to prioritize environmental consciousness. In addition, there is a need for reformulation in Article 33 paragraph (3) of the 1945 Constitution of Indonesia by adding wording or explanations. This would regulate the limitations of environmental exploitation for community prosperity and establish regulations for development without shifting agricultural land and food production
Sexual Abuse of Street Children in Pakistan: Legal Protection Under International and National Law
Full text linkThis study covers the social and legal dimensions of sexual abuse encountered by street children in Pakistan. It aims to elucidate the underlying reasons and contributory factors to child sexual abuse within the nation. This study employed qualitative methods, which involved analyzing data from primary sources such as acts of parliament and relevant journal articles. It highlights the exploitation of street children through prostitution, pornography, trafficking, and sex tourism. Therefore, it explored various manifestations of child sexual abuse both within street settings and beyond, alongside their foundational causes in Pakistani society. The study addresses the issue of sexual abuse among street children from two perspectives. Initially, it examines the different forms, prevalence, causes, and consequences of such abuse. Subsequently, it assesses the efficacy of both international and national laws and policies designed to counteract child sexual abuse. Despite the existence of legal frameworks in Pakistan aimed at addressing this issue, they are critiqued for being inadequate and inconsistent. The paper advocates for the introduction of more stringent legislation and enhanced trial transparency as measures to curb the incidence of child sexual abuse effectively. Updating and reinforcing existing legal provisions could significantly reduce the prevalence of such abuse in society.DOI: https://doi.org/10.22304/pjih.v11n1.a
The Legal Status of Shipwreck Cargoes as Underwater Cultural Heritage from National and International Standpoints
Full text linkShipwreck cargo or Benda Muatan Kapal Tenggelam (BMKT) in Indonesia, often referred to as underwater cultural heritage (UCH), holds significant economic potential for Indonesia, a nation prosperous in UCH sites. However, the preservation and management of these assets frequently encounter legal challenges at both national and international levels. This study examined the complex legal landscape surrounding shipwreck cargo in Indonesia, highlighting the divergent perspectives of national legislation and international norms. Indonesia's domestic laws allow for the auctioning of shipwreck cargo, which presents an opportunity for economic advancement. However, this approach clashes with the principles outlined in the Convention on Protection of the Underwater Cultural Heritage 2001, which underscore the collective heritage value of UCH objects and discourages their commercialization. This legal divergence underscores the need for Indonesia to balance its national interests with its international commitments in managing shipwreck cargo. By examining these legal intricacies, this study reveals the challenges of the coexistence of conflicting legal frameworks. It provides insights into potential strategies for harmonizing preservation efforts with commercial interests, thereby facilitating a balanced approach to the management of shipwreck cargo. By navigating these complexities, Indonesia can effectively leverage its underwater cultural heritage while fulfilling its obligations as a member of the international community