Padjadjaran Journal of Law
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Resolving the Conflict of Interests Issue within the Laws Concerning the Political Matters: Deliberative Democracy or Empowering Dewan Perwakilan Daerah?
Full text linkThis study examines whether the concept of deliberative democracy could offer a viable solution to the issues surrounding laws on political matters, commonly referred to as Paket Undang-Undang Politik in Indonesia. These laws, including general election regulations, have become problematic due to their close association with the drafters. Over the past two decades, presidents and the majority in the House of Representatives have formed coalitions to maintain government stability. However, this success has had a detrimental impact on the system of checks and balances during the drafting of these laws. While the Constitutional Court could potentially intervene by reviewing these laws, it has often not addressed the conflict of interest issues arising from open legal policies, especially in cases related to reviewing election laws. This paper addresses this issue by proposing a solution integrated into the drafting process to mitigate conflicts of interest in political matters legislation. The proposed approach involves incorporating an additional institution in the drafting process not directly influenced by political interests. In other countries, similar issues are tackled through practical implementations of deliberative democracy, which directly involves citizens as the decisive factor, using methods such as citizen assemblies and deliberative polling. We suggest empowering the Regional Representatives Council could offer a more practical solution to this issue.DOI: https://doi.org/10.22304/pjih.v10n3.a
The Urgency of Doxing on Social Media Regulation and the Implementation of Right to Be Forgotten on Related Content for the Optimization of Data Privacy Protection in Indonesia
Full text linkData privacy that attached to every social media user has become a target of crime. One of the crime types that utilizes social media is doxing. Nowadays, the cases of doxing are increasing. There are still no specific and comprehensive normative rules that cover the data privacy protection to avoid doxing on social media. The fact makes the law enforcement still not optimal. This study is a descriptive study to answer some questions. Firstly, how to regulate doxing on social media based on the perspective of Indonesian law compared to the perspectives of other states in similar issue? Secondly, how the implementation of the right to be forgotten in doxing cases can optimize data privacy protection in Indonesia? This study used a normative juridical and case study approach. This study has resulted several results. Firstly, Indonesia needs special regulation for doxing on social media to protect the user data privacy. Secondly, the regulation of right to be forgotten should be reformulated and must be applied as a solution to doxing content. Doxing on social media regulation with the right to be forgotten can be further regulated through the legal regulation to provide a better data privacy protection.DOI: https://doi.org/10.22304/pjih.v9n1.a
Legal Implications on Cancellation of Agreements Made Prior to Custody for Good Faith Land Buyers
Full text linkThis study aims to analyze the construction of the cancellation of the land purchase agreement and legal protection for the seller in land purchases before the custody. The study used statute, case, and conceptual approaches. It focuses on the concept of custody and good faith. After analyzing the relevant legal sources, it is known that, on the one hand, Article 447 of the Indonesian Civil Code allows for the retroactive application of the custody in some conditions: (1) the custody is due to unwise, mental disorder, and irrational; and (2) the reasons underlying the custody had existed at the time the legal action is taken. The implementation of Article 447 can cancel land purchases made before the custody. On the other hand, the state must protect the buyer’s principle of good faith even though the seller is an unauthorized person. Article 447 must be applied because (1) the Indonesian Civil Code is a positive law that must be enforced; (2) people who are placed under custody are more at risk of experiencing losses in land purchases, and (3) construction of good faith land buyers cannot be applied because there are fewer parties.DOI: https://doi.org/10.22304/pjih.v9n2.a
Legal Formulation to Overcome Base-Erosion and Profit-Shifting Practices of Digital-Economy Multinational Enterprise in Indonesia
Full text linkThis study discusses Indonesian legal strategies and formulations to handle tax avoidance originating from Base Erosion Profit Shifting (BEPS) carried out by the digital-economy multinational enterprise. It is a normative (doctrinal) study supported by non-doctrinal methods to reveal the truth based on the logic of legal scholarship. It also compared the practices to the tax provisions, legislation, and cases in India, the United Kingdom, Australia, and Malaysia. At least two theories underlie the study. The first is the legal theory of justice, certainty, and expediency from Gustav Radbruch. The second is the theory of international cooperation. The study found several points. First, multinational enterprise strategies avoid tax by means of Permanent Establishment techniques in low-tax jurisdictions, transfer pricing, and tax treaty shopping. Second, to tackle the multinational enterprise that conducts BEPS in the field of the digital economy, (1) all countries have developed and amended laws and regulations related to e-commerce taxation and the digital economy; and (2) all countries carry out international cooperation, both bilaterally and multilaterally through tax treaties, MLI, and CbC reporting. DOI: https://doi.org/10.22304/pjih.v9n3.a
Assessing the Assurance of Legal Certainty and Equity of the Indonesian Law of Money Laundering
Full text linkLaw of Money Laundering has a fundamental point to eradicate transnational predicate and serious crimes. Each state has different arrangements to address predicate crime. Indonesia considers predicate crime in the category of ordinary crime consisting of fraud and embezzlement. However, ordinary or conventional crimes may only be subject to the Law under limited circumstances. Article 69 of the Law of Money Laundering remains debatable among criminal law experts due to the relation with Articles 77 and 78 of the Law. The last two articles prescribe that burden of proof on the case of predicate crimes is on defendant, not public prosecutor. Defendant must prove assets that are suspected as result of crime, not acquired from the crime, or related to crime. Currently, there is no elucidation to the articles. This study analyzed two legal issues. Firstly, does the formulation of Article 2, paragraph 1, and Article 69 of the Law of Anti-Money Laundering guarantee legal certainty and fulfil a sense of justice? Secondly, does the Article 2 paragraph 1 letter z of the Law cause ordinary criminal acts to be entangled with the Law on Money Laundering?DOI: https://doi.org/10.22304/pjih.v9n1.a
WTO Trade War Resolution for Japan's Chemical Export Restrictions to South Korea
Full text linkThe research analyses the trade war between South Korea and Japan from the perspective of international law. The trade war involving South Korea and Japan was triggered by a decision by the Supreme Court of South Korea which ordered several Japanese companies to pay compensation to victims of Japanese forced labor during World War II. As a result, on July 1, 2019, Japan imposed restrictions on chemical exports to South Korea. South Korea accused Japan of violating international trade regulations concerning export restrictions. Therefore, South Korea took action by boycotting goods from Japan. The two countries resolved to remove each other from the whitelist of countries that obtain preferential trade status via their activities. The research method used is normative legal research with a case approach. The result shows that the trade war involving Japan and South Korea worsened bilateral relations. The World Trade Organization (WTO) carried out several mechanisms related to solving the problem, namely through consultation and conciliation involving the two countries, but it still needs to resolve the issue. It was also planned to establish a panel between South Korea and Japan by the WTO, but it has not been implemented until now and beyond the timeframe set by the WTO in establishing the Panel. Therefore, the study proposes that South Korea and Japan can initiate arbitration as a solution for another effort to resolve the problem because the arbitration mechanism obtains binding and final decisions.DOI: https://doi.org/10.22304/pjih.v9n3.a
A Deleuzian Reading on Hart’s Internal Point of View
Full text linkReading H.L.A Hart’s internal point of view or participant’s self-understanding through Deleuzian philosophy suggests an alternate way of grasping Hart’s refutation of John Austin’s command-based theory of law. The study claims two main arguments. First, a Deleuzian investigation of participants’ self-understanding asserts the way to understand not only what law is but also what is about law, or, to be precise, what law can actually do. Therefore, Hart’s participant’s self-understanding is not simply a property of law but instead, it is a concept that uncovers the capacity of Deleuzian ‘desiring-machines’ in law’s plane of immanence. Second, by putting Hart’s concept to the initial proposition of refutation of Austinian mere habit of obedience, we can situate the participants as desiring-machine whose acceptance to rule is essentially a form of communications. That is, like a rhizome, it has no definite root/source. Self-understanding or acceptance does not stem from a particular sovereign power—it somehow reflects Deleuze’s transcendental empiricism.DOI: https://doi.org/10.22304/pjih.v9n1.a7
Legal Protection for the Use of Copyright of Songs and/or Music in Live Streaming Concerts Through Digital Platforms in Indonesia
Full text linkThe Covid-19 pandemic has accelerated the digital influence on the Indonesian music industry. Music concerts, which are usually held offline with crowds of people, are no longer possible because crowds can make new clusters of Covid-19. The Indonesian music industry needs alternatives to survive the pandemic, and the advance in technology has the solution. Virtual concerts that are broadcasted via digital platforms have started to thrive. They use copyrighted songs and/or music so that royalty payments are made in accordance with the type of use and needs. Unfortunately, the Law Number 28 of 2014 on Copyright and the Government Regulation Number 56 of 2021 on the Management of Song and/or Music Copyright Royalties do not regulate the use in detail and specific manners. Therefore, the industry actors have not found the right payment formula for the economic rights royalties. The absence of regulations certainly does not reduce the user’s primary obligation to obtain a songwriter's permission and pay royalties for song and/or music copyrights. The fulfillment of the obligation to pay royalties must still be accomplished with due regard to applicable provisions. This study examined the problems with a normative juridical method. It considered the practices and customs that apply in Indonesia. It also generated some perspectives from relevant stakeholders. DOI: https://doi.org/10.22304/pjih.v9n2.a1Pengaruh disrupsi digital dalam dunia musik Indonesia dipercepat dengan merebaknya pandemi COVID-19. Konser musik yang biasanya diselenggarakan secara tatap muka di suatu lokasi tertentu tidak lagi dimungkinkan karena mengumpulkan banyak orang sehingga berpotensi menjadi kluster penyebaran COVID-19. Industri musik memerlukan alternatif pengganti konser tatap muka untuk dapat terus bertahan di tengah pandemi, dan dengan bantuan kemajuan teknologi, mulai marak penyelengaraan konser secara virtual yang disiarkan melalui platform digital. Konser ini menggunakan hak cipta lagu dan/atau musik dengan cara yang berbeda dengan konser tatap muka sehingga pembayaran royalti atas penggunaan hak cipta lagu dan/atau musik tersebut seharusnya dilakukan sesuai dengan jenis penggunaan dan kebutuhannya. Hal ini tidak diatur secara detail dan spesifik baik dalam Undang-Undang No. 28 Tahun 2014 tentang Hak Cipta maupun dalam Peraturan Pemerintah No. 56 Tahun 2021 tentang Pengelolaan Royalti Hak Cipta Lagu dan/atau Musik, sehingga pelaku industri belum menemukan formula yang tepat dalam membayarkan royalti hak ekonomi atas hak cipta lagu dan/atau musik yang digunakan dalam konser virtual yang disiarkan secara live streaming melalui platform digital. Tidak adanya peraturan yang mengatur secara detail mengenai konser virtual yang disiarkan secara live streaming tentu tidak mengurangi kewajiban dasar pengguna untuk mendapatkan izin dari pencipta dan membayar royalty hak cipta lagu dan/atau musik. Tulisan ini akan meneliti permasalahan tersebut dengan menggunakan metode yuridis normatif dengan memperhatikan praktik dan kebiasaan yang berlaku di Indonesia. Tulisan ini telah didiskusikan dengan pemangku kepentingan terkait
Covid-19 Induced Virtual Courts Sessions in Nigeria: Practicalities and Impracticalities
Full text linkThe Presidential Declaration of Corona Virus Disease 19 as a ‘dangerous contagious disease’ occasioned the emergence of several regulations imposing restrictions on movements and social distancing measures. The Chief Justice of Nigeria and other heads of court also approved the Guidelines and Practice Directions containing modalities for virtual court sessions. This paper aims to examine the legal implications of virtual court session. The traditional requirement that court sessions should be held in places open to the public signifies a constitutional disapproval of virtual court sessions. It is contended that Practice Directions and Guidelines are weak mechanisms for entrenching virtual court sessions in Nigeria since they are within the lowest rung of the hierarchy of laws. Hence, the reform needs to be holistic. It should entail amendment of certain provisions of the constitution, laws, and rules of courts to enable a virtual innovation without legal hiccups. In alternative to constitutional amendment which usually takes long, this work, in addition to predicting the decision of the apex court on six grounds, suggests the immediate need for a judicial intervention in interpreting the constitutionality of virtual court session. This is to put to rest the fear harboured by some individuals that the serious judicial efforts put in by judges and counsel via virtual court sessions would end up becoming a nullity on appeal to the apex court.DOI: https://doi.org/10.22304/pjih.v9n2.a7
The Organization of the General Meeting of Shareholders based on Court Determination from the Perspective of Shareholder Rights’ Protection
Full text linkThe General Meeting of Shareholders (GMS) is generally the authority of the Board of Directors. Prior to the GMS, the Board of Directors usually invites shareholders to the GMS. In addition, the Commissioners and shareholders under certain conditions have the right to request the GMS. It is even possible for shareholders to hold a GMS based on a court order. For this reason, this study elaborates on the mechanism to hold a GMS based on a court order. This study also explores the characteristics of the procedural law in court and the holding of the GMS based on a court decision. This study employed a normative juridical method with a statutory approach, especially on Article 79 and Article 80 of the Indonesian Law on Company, and provisions of procedural law, especially civil procedural law relating to the application of the principle of audi et alteram partem. The results show that court decisions have special characteristics related to the requirements and implementation of procedural law. The court’s product in the form of a decision does not provide a balanced position regarding the right to take legal action.DOI: https://doi.org/10.22304/pjih.v9n2.a2