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Comparison of the President Prerogative Rights in Indonesia Constitutions
Get PDFPrerogative rights can be interpreted as privileges or privileges, The Indonesian constitutional history that has used several constitutions indirectly has implications for the practice of the use of prerogative rights in Indonesia. This study research on the preogrative rights of the President in the Constitutions of Indonesia. The approach used in this study is normative juridical with the law approach model. It is concluded that the use of prerogative rights has ups and downs influenced by the concept of checks and balances and distribution of power. Therefore, the use of prerogative rights as in the previous constitution is more directed to heavy executives who do not require confirmation to other state institutions, now it has begun to be restricted so the use of the term prerogative privileges is no longer pure as before. Keyword: President, Prerogative Rights, Indonesia Constitutio
The Application of Utility in Indonesia Based on the Principles of Utilitarianism
Get PDFUtilitarianism is a principle claiming that the greatest amount of happiness is an end that should exclusively guide all actions of both government and individuals. The fact that people value happiness is considered to be morally right. This principle is pursued by Jeremy Bentham, who believes that the two sovereigns in life are pleasure and pain. It holds an important aspect in law enforcement since it sees what will benefit people the most as the main discussion. Even though there is still some party that opposes or overlooks this view, especially in Indonesia, writers believe that utility is the powerful principle that cannot be set aside. It is needed to be seen as an important aspect on law enforcement so that it can bring happiness and satisfaction to the society. Keywords: Utility, Happiness, Moral, Utilitarianism, Society
The Identity Politics of the Minority in Knitting the Constitutionality (The Legal review of Sunda Wiwitan Community of Cigugur, Kuningan, West Java)
Get PDFThe Identity Politics of Sunda Wiwitan community, which nowadays is rated as a form of self-preservation to meet the economic needs of families, has been considered to get restraints from the state. The economic needs make the identity politics as a means to save oneself. The Identification card, which is known as KTP and in which there is a religion column, has created discrimination of the identity for the Sunda Wiwitan Community (KSW). The KSW still runs the obedience to the teachings of the ancestors but to save the economy, the status of the religion is willingly written to be recognized as other religions by the state. There is no other way to save the economic life for the sake of the family survival than to fill in the religion column with the state-recognized religions. The situation is certainly influential for the KSW against other identities such as marriage and education cards. The discussion uses the result that comes from the interviews and some literature. Then the result becomes something ideal for KSW to save themselves in the economic field by changing the identity on the ID card. It is the way from KSW in passing the identity politics to meet the economic needs while the other side becomes the weakness of the Indonesian national law that does not provide any space for KSW in order to have equal opportunity as the Indonesian citizen. Keywords: The Identity Politics, KSW, Constitutionality
Legal Implications of the Establishment of Alternative Institution of Dispute Resolution of Indonesian Banking (LAPSPI) on Sharia Banking Dispute Settlement in Indonesia
Get PDFSharia banking is specifically regulated by Law No. 21 on 2008 of Sharia Banking, the provision of Article 55 of the law provides that the resolution of sharia banking disputes shall be conducted by the courts within the scope of religious courts, but does not rule out the existence of other forum authority as agreed by the parties. At the end of 2015, an Alternative Institution of Dispute Resolution of Indonesian Banking (LAPSPI) has been established and registered as a follow-up to the Financial Services Authority Regulation no. 1 / POJK, 07/2014 About the Alternative Dispute Resolution Institution in the Financial Services Sector. It is interesting to be reviewed what the legal implication of LAPSPI's establishment on dispute resolution of sharia banking in Indonesia is. This research was conducted by applying normative juridical approach method with analytical description research specification. Legal implications of LAPSI's establishment are requiring sharia banks to make LAPSPI as the only space and organization recognized in sharia banking external dispute resolution based on LAPSPI article of the association. Keywords: Dispute Settlement, LAPSPI, Sharia Banking
The Implementation of Inclusion in Corruption Case Handling
Get PDFThe formulation of problem in the implementation of inclusion in handling corruption case has reflected the legal objectives which are legal certainty, justice, and expediency, and inconsistency in implementing the inclusion in handling corruption case, the purpose of the research is To find out and analyze the application of inclusion in handling corruption case has reflected the legal purposes which are legal certainty, justice and expediency and To find out and analyze the inconsistency in applying of inclusion in handling of corruption case, using empirical research method which resulted that there is indication that the implementation of inclusion is not yet implemented which causing inconsistency of law enforcement officer, i.e., Police, Attorney in applying the article of inclusion in handling of case corruption and inconsistency in the application of inclusion in corruption cases causes the occurrence of discrimination in the process of law enforcement, so that does not reflect the legal purpose of legal certainty. It is recommended that to create legal objectives, law enforcement officers must be consistent in applying the articles of inclusion in the handling of corruption cases and to achieve legal certainty should investigators, and prosecutors apply the juridical participation in corruption cases. Keywords: Implementation, Inclusion, Corruption Cas
The Principle of Good Faith in The Choice of Law of Foreign Direct Investment Contracts in Indonesia
Get PDFApplying the principle of good faith in the choice of law is one of the most common problems of international business contract, particularly in foreign direct investment contracts. The implementation of the principle of good faith in the choice of law increasingly reduced by the emergence of some problems in the investment contract, which of course, the most aggrieved entities are domestic investors who also host country. The choice of law has an important role in the contract because it concerns the interests of each of the parties, and the principle of good faith as a priority principle of international contract law should be applied as the basis for determining the choice of law for the parties to a contract. This paper examines the principle of good faith in the choice of law to realize justice among the parties with different laws, especially on private and public investment contracts between foreign investors and domestic investors in Indonesia, in the process of formation, implementation, or post-contract. This paper is legal research that is normative, meaning that this research is based on the prevailing laws and regulations in Indonesia. Then, the approach used is statute approach and conceptual approach. So it is expected that between the rules and the concept of existing topics will be aligned. Keywords: Choice of Law, Foreign Direct Investment Contracts, Principles of Good Faith.
Good Governance According to Islamic Perspective
Get PDFThe objectives of the professional agencies must embody provisions that promote good governance and embrace values of integrity and accountability and seek support from the public and the government of the day to provide an independent view on all matters. The universal truth is that everything should be done in the public good. Professionals form the backbone of human infrastructure in any economy, politics, social and legal growth. Their contributions through professional performance enhance the good delivery system that facilitates policies making and management for public sector. They provide the skills and talent in balancing the pursuits of maximization of services. The expression “good governance” has constantly been used lately in both public sector as well as private sector in Malaysia. In the context of a private body, it should be within the framework of the statute, which governs the body and also its constitution. In the public sector, it means that the administrators should act professionally and not to abuse or misuse the power or authority given to them. They are regarded as the trustees of the public at large. The scope of this article is on good public governance in the public sector or to be exact, good governmental administration as interpreted by the judiciary especially through its judicial review power and Islamic Perspective based on the principles of Maqasid As Shariah (Objectives of Islamic Law). Keywords: Good Governance, Public Sector, Malaysian Law, Islamic Perspective, Maqasid As-Shariah
Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia
Get PDFGenetic Resources is a foundation of human life, as a source of food, industrial raw materials, pharmaceuticals, and medicines. From its utilization may provide a financial benefit to the provider and the user of it. Unfortunately, most of it obtained from developing countries through biopiracy, including Indonesia. Furthermore, in the early 1980s, access and benefit sharing (ABS) to genetic resources became an international issue. It leads to the adoption of the Convention on Biological Diversity (CBD) in 1992. However, since it was approved, the whole ideas of excellence of it could not be implemented, a problem on it still arises. Intellectual property right laws, in certain aspects, are possible for using to protect traditional knowledge from their utilization. However, at the same time, intellectual property regime also becomes “a tool” to legitimate of biopiracy practices. Due to massive international pressure, mostly in developing countries, it proposes two kinds of protections, which are positive protection and defensive protection. This paper will examine one of it, which is positive protection. By using the normative method and qualitative approach, this paper identified at least two kinds of positive protections that we can develop to protect genetic resources related to traditional knowledge, which are optimizing the patent law and developing the sui generis law. Furthermore, it can be done by some revision by adding new substances, an improvement on the articles, or even by doing the deletion on certain articles. Moreover, in order to develop the sui generis law, it identified several minimum elements that shall be contained on it, inter alia: the purposes of protection; scope of protection; criteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how the rights acquired; how to enforce it; how the rights lost or expired; and dispute resolution. Keywords: Positive Protection, Genetic Resources, Traditional Knowledge
The Protection of Human Rights in Indonesian Constitutional Law after the Amendment of the 1945 Constitution of the Republic of Indonesia
Get PDFThe amendment to the 1945 Constitution of the Republic of Indonesia has shown progress in respecting, protecting and fulfilling human rights in Indonesia. It is proven from the advanced provisions that have set the human rights material, starting from the affirmation of fundamental rights, individual rights, social rights, solidarity rights, and even the assertion of rights included in the category of not-derogable rights in the Second Amendment to the 1945 Constitution. The urgency of the Constitution 1945 as written constitution due to its status as the ultimate instrument to determine a norm (law), action or government policy, so it will not violate human rights and constitutional rights of the citizens. Thus, the Constitution is an important instrument in term of guaranty and ensuring that human rights within the Republic of Indonesia are protected, even though the source of human rights is not actually derived from the State but naturally originated from natural law, whether its universal validity is either affirmed or not in the Constitution. It shows progress in the level of regulation and protection of human rights in Indonesia.Related to the guarantee of the protection of human rights, one of the important material of the 1945 Constitution of the Republic of Indonesia is the presence of a new judicial institution called the Constitutional Court, in addition to the Supreme Court. The existence of the Constitutional Court in Indonesia is an improvement in maintaining and upholding the Constitution and protecting human rights. Hence, the Constitutional Court referred to as “the Protector of Human Rights.” Protection of human rights is carried out through the exercise of authority as defined in Article 24C Paragraph (1) of the 1945 Constitution which is to review an Act against the Constitution, to judge on authority disputes of state institutions whose authorities are granted by the Constitution, to judge on the dissolution of a political party, and to judge on disputes regarding the result of a general election. Also, Article 24C Paragraph (2) obliges the Constitutional Court to render a judgment on the petition of the People’s Representative Council regarding an alleged violation by the President and the Vice President according to the Constitution. Keywords: Human Rights, Constitutional Law, Amendment to the Constitution
The Reconstruction of Energy Management Law Based on Indonesia Legal System
Get PDFTwo things become an important part of studies in Indonesian law related to energy management. The first, related to the management of natural resources. Second, the energy sector is also related to other sectors, that is forestry, water resources, marine and fisheries, agriculture and plantations, as well as land. Ideally, all of the energy management law must reflect the state ideology, as natural resources energy must be managed for the greater prosperity of the people. Energy should not be administered arbitrarily because, in addition to the utilization, the existence of natural resources should not be separated from the philosophical orientation of Indonesian legislation, Pancasila, and The 1945 Constitution. However, the reality of energy legislation indicates of the authority competes between sectors and alignments to society which is not optimal. It is due to the legal nature of the energy sector which is liberal and still-exploitation oriented and pro-capitalist. By using a socio-legal approach, this paper describes the reconstruction of law-oriented to the Indonesian legal system in energy management based on Pancasila and the 1945 Constitution as the foundation and soul of the energy sector law. Keywords: Reconstruction of Law, Energy Management, the Indonesian Legal System