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Interpretation of Freedom of Contract to the Decision of the Constitutional Court of the Republic of Indonesia Sultan Alwan
Khairun Law Journal Volume 2 Issue 1, September 2018
Publisher : Faculty of Law, Khairun University

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The principle of freedom of contract is a principle in the treaty law that cannot be understood absolutely for anyone who is involved in an agreement. In order to make a binding in the contract/agreement, the parties should still take into account the essence of the equilibrium value of the parties to an agreement to avoid the existence of contracts/standard agreements that would precisely eliminate the value of justice for the right that should be obtained for one of the contracting parties. for example, contracts/labour agreements made between employers and workers/labourers in the case of termination of employment due to the existence of inter-worker/labourer marriage ropes in one company as regulated in Article 153 paragraph (1) letter f of Law of the Republic of Indonesia Number 13 Year 2003 concerning Manpower. For the applicant a judicial review of the provisions of the article in the Constitutional Court of the Republic of Indonesia, to assess the provisions of that article is of constitutional harm if such provisions continue. The Constitutional Court of the Republic of Indonesia in its legal consideration of Decision Number 13/PUU-XV/2017 considers the principle of freedom of contract in the context of the article whose judicial review is no longer relevantbecause it does not meet the value of the balance in the process of contracting/agreement and eliminating the justice of one of the parties involved in the contract.

Implikasi Sengketa Batas Wilayah Terhadap Penyelenggaraan Pemilu (Studi Kasus di Provinsi Maluku Utara) Sultan Alwan
Jurnal Selat Vol. 8 No. 1 (2020): Jurnal Selat
Publisher : Program Studi Ilmu Hukum Universitas Maritim Raja Ali Haji

Area expansion as a consequence of regional autonomy implementation has caused excess regional boundary disputes which led to conflicts. The case that occurred in six villages in the North Maluku Province was due to the refusal of residents to be part of the District in North Halmahera Regency and wanted to remain in the West Halmahera Regency. In reality there is a dualism in government administration services because each village has two Village Heads, namely the North Halmahera government and the West Halmahera government version. The dissolution of disputes settlement has implications for the implementation of Regional Head Elections and Elections in the region. Election Organizers stipulate that the Permanent Voters List (DPT) of six villages is included in the jurisdiction of North Halmahera Regency. As a form of protest, thousands of citizens did not exercise their right to vote in the 2014 and 2018 Regional Head Elections. The General Election Law and Regional Head Election at present, it has not explicitly regulated the guarantee of the protection of citizensâ€™ rights to vote in the area of boundary disputes due to the division of regions. In the future, special arrangements need to be made so that no citizen loses his right to vote because of technical administrative issues that ignore the election substance.

Legal Analysis of Regional Legislative Council Supervision of Regional Government Regarding Overlapping Mining Business Permits in North Maluku Province Radina Hamza Hairun; Sultan Alwan; Nam Rumkel
Journal of Social Science Vol. 4 No. 2 (2023): Journal of Social Science
Publisher : Syntax Corporation Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.46799/jss.v4i2.548

This study aims to assess the authority of provincial governments related to mining business permits. Moreover, DPRD supervision of local governments related to overlapping of overlapping mining business permits in North Maluku Province. The research method used in this study is the type of research used in the research is normative legal research as a process to find the rule of law, legal principles, and legal doctrines to answer the legal issues faced. The scientific logic that in normative legal research is built on scientific discipline and the ways in which normative legal science works, legal science whose object is law itself. The results of this study show that the authority of provincial governments related to mining business permits is explicitly regulated in the provisions of Article 14 paragraph (1) Law Number 23 of 2014 concerning Regional Government which reads "the implementation of government affairs in the fields of forestry, marine, as well as energy and mineral resources becomes a concurrent affair which is a division of authority between the central and provincial governments", The provisions of Article 14 paragraph (1) regulate mining business permits (IUP) which are no longer the authority of the regency government anymore, but become the authority of the provincial and central governments. The transfer of authority to issue mining business licenses (IUP), has a juridical impact on the provisions related to this matter will certainly change, but in its implementation the old provisions are used until there are new provisions that adapt to these rules.

Legal Analysis of Regional Legislative Council Supervision of Regional Government Regarding Overlapping Mining Business Permits in North Maluku Province Radina Hamza Hairun; Sultan Alwan; Nam Rumkel
Journal of Social Science Vol. 4 No. 2 (2023): Journal of Social Science
Publisher : Syntax Corporation Indonesia

This study aims to assess the authority of provincial governments related to mining business permits. Moreover, DPRD supervision of local governments related to overlapping of overlapping mining business permits in North Maluku Province. The research method used in this study is the type of research used in the research is normative legal research as a process to find the rule of law, legal principles, and legal doctrines to answer the legal issues faced. The scientific logic that in normative legal research is built on scientific discipline and the ways in which normative legal science works, legal science whose object is law itself. The results of this study show that the authority of provincial governments related to mining business permits is explicitly regulated in the provisions of Article 14 paragraph (1) Law Number 23 of 2014 concerning Regional Government which reads "the implementation of government affairs in the fields of forestry, marine, as well as energy and mineral resources becomes a concurrent affair which is a division of authority between the central and provincial governments", The provisions of Article 14 paragraph (1) regulate mining business permits (IUP) which are no longer the authority of the regency government anymore, but become the authority of the provincial and central governments. The transfer of authority to issue mining business licenses (IUP), has a juridical impact on the provisions related to this matter will certainly change, but in its implementation the old provisions are used until there are new provisions that adapt to these rules.

Analysis of Constitutional Court Decision No. 30/Puu-Xvi/2018 and Supreme Court Decision No. 65p/Hum/2018 Concerning the Prohibition of Concurrent Positions for Regional Representative Council Candidates (DPD) Riswan Rais Syarif; Sultan Alwan; Rudhi Achsoni
Jurnal Hukum Volkgeist Vol. 7 No. 2 (2023): JUNE
Publisher : Lembaga Penelitian dan Pengabdian Masyarakat

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.35326/volkgeist.v7i2.3100

This study aims to examine the differences between the Constitutional Court's decision and the Supreme Court's decision regarding the prohibition of concurrent positions as candidates for members of DPD, as well as the legal ramifications of these differences. This research employs the normative legal research approach, which refers to legal research that refers to written regulations or other legal materials. Disparity between the Constitutional Court Decision and the Supreme Court is the different time for enforcing the ban on candidates for DPD members from political party officials, according to the findings of this study. The Constitutional Court stated that it has been in effect since the 2019 election, however the Supreme Court stated since after the 2019 election. This disparity or difference may be caused by several factors, including: the Constitutional Court's and the Supreme Court's different authorities when examining a statutory regulation; the Constitutional Court's and the Supreme Court's use of different touchstones when examining a statutory regulation; and the judges of the Constitutional Court and the Supreme Court's differing perspectives when analyzing cases. The absence of legal certainty and the violation of citizens' constitutional rights are the legal consequences of the gap between the two judgements.

Implikasi Hukum Pembentukan Peraturan Pelaksana Pasca Putusan Mahkamah Konstitusi Atas Pengujian Undang-Undang No. 11 Tahun 2020 Tentang Cipta Kerja Rizki, Muhammad; Alwan, Sultan; Rumkel, Nam
AL-MANHAJ: Jurnal Hukum dan Pranata Sosial Islam Vol 5 No 2 (2023)
Publisher : Fakultas Syariah INSURI Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.37680/almanhaj.v5i2.3162

This study aims to examine the legal status and binding force of the Implementing Regulations enacted and analyze the legal implications of the formation of Implementing Regulations post-Constitutional Court Decision No. 91/PUU-XVIII/2020. The research method used is empirical with data collection through literature review, interviews, and supporting theories. The data analysis technique employed is descriptive qualitative. The results of the study indicate that the formation of three Implementing Regulations after Constitutional Court Decision No. 91/PUU-XVIII/2020 in the context of the Omnibus Law on Job Creation lacks legal status and binding force in the enforcement of norms. Moreover, Constitutional Court Decision No. 91/PUU-XVIII/2020, which examined the formal aspects of Law No. 11 of 2020 concerning Job Creation, has wide-ranging implications. Through its decision, the Constitutional Court, particularly in point 7, suspends actions or strategic policies with broad impacts and prohibits the issuance of implementing regulations.

Principles of Justice and Legal Certainty by election organizers Regarding Conditions for Nominating Regional Heads Djaguna, DJulham; Alwan, Sultan; Rosyidi, Irham
Journal Equity of Law and Governance Vol. 4 No. 1
Publisher : Warmadewa Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55637/elg.4.1.9372.44-51

This study aimed to understand the considerations of the judges of the Honorary Council for Election Organizers (DKPP) in handling cases of violations of law and ethics by regional head election organizers, as reflected in the 161-PKE-DKPP/XI/2020 decision. This study adopted a normative or doctrinal legal research method, utilizing primary, secondary, and tertiary legal materials. Analysis was conducted through a theoretical descriptive approach to the problem faced. The results showed that the DKPP judges criticized the South Halmahera KPU for its lack of professionalism in examining the nomination requirements, stating that the KPU should not only understand the nomination PKPU and Juknis textually, but also substantively. The DKPP judge's decision showed high professionalism, prudence, and wisdom, with deep consideration based on existing norms. However, in terms of rejecting the fulfillment of the nomination requirements, the South Halmahera KPU also had applied the principle of legal certainty which is considered the appropriate legal norm in the context of the South Halmahera district head election.

Prinsip Itikad Baik Terhadap Merek MS Glow Rachman, Taslim Abd.; Alauddin, Rusdin; Alwan, Sultan
Legal Spirit Vol 8, No 1 (2024): Legal Spirit
Publisher : Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31328/ls.v8i1.5091

Legal protection is an important aspect that needs to be considered in the controversy between MS Glow and PS Glow trademarks. PT Kosmetika Global Indonesia, the MS Glow brand holder that has registered its brand with the Director General of Intellectual Property Rights, requires adequate legal protection. The public sees that the products of the MS Glow brand are better known than the products of the PS Glow brand, and there is a view that PS Glow is trying to hijack the popularity of MS Glow. Through normative juridical legal research, it was found that in the context of the principle of good faith, MS Glow is entitled to legal protection as a brand owner. The brand owner has the exclusive right to the use of its brand and the government is responsible for ensuring this protection. The judge's decision in the dispute between the MS Glow and PS Glow trademarks (Decision Number 2/Pdt.Sus.HKI/Merek/2022/PN.Niaga.Sby) has fulfilled the principle of legal certainty. The judge refers to Law Number 20 Year 2016 on Trademark Registration and Geographical Indications as well as the principle of "first to file". However, the decision has not fully reflected justice and expediency. In the context of trademark registration, the "first to file" principle needs to be evaluated by the government to make it fairer. The lengthy trademark registration process must pay close attention to every detail, the Director General of IPR must be more active in socializing Law Number 20 Year 2016, including the principle of "first to file" to the public so that understanding of the trademark and the registration process becomes better.

Rekonstruksi Pengaturan Kewenangan Legislasi Dewan Perwakilan Daerah (Studi Pasal 22D Undang-Undang Dasar Negara Republik Indonesia Tahun 1945) Salim, Safrin; Alwan, Sultan; Achsoni, Rudhi
Sang Pencerah: Jurnal Ilmiah Universitas Muhammadiyah Buton Vol. 11 No. 1 (2025): Sang Pencerah: Jurnal Ilmiah Universitas Muhammadiyah Buton
Publisher : Lembaga Jurnal dan Publikasi Universitas Muhammadiyah Buton

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.35326/pencerah.v11i1.7078

Penelitian ini membahas peran Dewan Perwakilan Daerah (DPD) dalam sistem ketatanegaraan Indonesia, khususnya kewenangan legislasi yang diatur dalam Pasal 22D UUD 1945. Perubahan sistem parlemen Indonesia dari unicameral menjadi bicameral menciptakan dualisme fungsi legislatif antara DPD dan DPR. Namun, kewenangan DPD yang terbatas hanya pada pengajuan dan pembahasan rancangan undang-undang dinilai belum mampu mewujudkan sistem checks and balances yang ideal. Penelitian ini bertujuan untuk menganalisis rasio legis kewenangan legislasi DPD serta merumuskan format ideal kewenangan legislasi yang seharusnya dimiliki DPD. Metode yang digunakan adalah pendekatan hukum normatif dengan analisis bahan hukum primer, seperti UUD 1945 dan UU No. 2 Tahun 2018, serta bahan hukum sekunder dari literatur hukum tata negara. Hasil penelitian menunjukkan bahwa peran legislasi DPD belum mencerminkan fungsi representasi daerah yang kuat dalam sistem bicameral. Keterbatasan kewenangan DPD menyebabkan dominasi DPR dalam proses legislasi, sehingga checks and balances antara kedua lembaga belum terwujud. Penelitian ini merekomendasikan penguatan kewenangan DPD, termasuk dalam pengesahan rancangan undang-undang yang berkaitan dengan kepentingan daerah. Reformasi ini diharapkan dapat mengoptimalkan peran DPD sebagai lembaga representasi daerah dalam memperkuat otonomi daerah dan menjaga integrasi nasional.

Implementation of Community Protection of Gurabunga Customary Law: An Empirical Analysis of Customary Law Practices and Their Recognition by the State Sinay, Siti Barora; Alwan, Sultan; Rosyidi , Irham
Pena Justisia: Media Komunikasi dan Kajian Hukum Vol. 24 No. 1 (2025): Pena Justisia
Publisher : Faculty of Law, Universitas Pekalongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31941/pj.v24i2.6656

Gurabunga Village, located in Tidore District, Tidore Islands City, has a long history as part of the Tidore Sultanate and is an area with customary law communities that still preserve their traditions. This study aims to examine the process of changing the status of Gurabunga Village to a Customary Village, as well as its implications for the recognition and legal protection for the Gurabunga customary law community. The method used is empirical legal research with a sociolegal approach, collecting data through interviews, observations, and studies of related legal documents. The results of the study show that the Gurabunga community has appropriate characteristics to be recognized as a customary law community based on Permendagri No. 52 of 2014, with customary wealth in the form of customary land that is managed communally and protected by local customary law. The process of changing this status involves community initiatives through village deliberations, fulfillment of administrative requirements, and local government approval. Meanwhile, the biggest challenge in the implementation of legal protection of customary rights is the lack of understanding from local governments regarding the importance of recognizing the rights of customary law communities. Therefore, this study suggests the importance of strengthening regulations and empowering customary law communities through more inclusive policies. The recommendation of this study is to accelerate the recognition of indigenous peoples in Indonesia, by providing space for communities to fight for their indigenous rights within a national legal framework that is responsive and adaptive to local social and cultural needs

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