Hasanuddin Law Review
Hasanuddin Law Review (Hasanuddin Law Rev. - HALREV) is a peer-reviewed journal published by Faculty of Law, Hasanuddin University. HALREV published three times a year in April, August, and December. This journal provides immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.
The aims of this journal is to provide a venue for academicians, researchers, and practitioners for publishing the original research articles or review articles. The scope of the articles published in this journal deals with a broad range of topics in the fields of Criminal Law, Civil Law, International Law, Constitutional Law, Administrative Law, Islamic Law, Economic Law, Medical Law, Adat Law, Environmental Law and another section related contemporary issues in l
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<![CDATA[Vulnerability of Elderly Women: Victim of Gender Discrimination ]]>
<![CDATA[Subir Kumar Roy]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.560
<![CDATA[The life cycle of human being completes with the process of aging but we fail to realize this simple arithmetic of life and often consider our elders as a burden for us. They are compelled to compromise with their dignity and integrity and forced to live at the mercy of their own nearest and dearest. When we talk about elderly women their position is more appalling than their male counterpart due to this male chauvinism which tries to regulate every affair of the life of the people. Under the alibi of protection and security of women they are subjected to the violent gender discrimination and compelled to live and lead their life at the fingertips of a male. The women in especially in third world countries are considered as a tool of procreation of child and all her activities and qualities of life are relegated with the household course. Across the globe the male tendency is to regulate Women’s ownership and control of property, resources created by her own labor, education and information and even her reproductive abilities and sexualities with an intention to jeopardize and throttled down the rights of the women. Women bear this status till her last breath and hence, it is axiomatic that how vulnerable their position is. ]]>
<![CDATA[The Land Rights of Indigenous Peoples: Revaluation of Papua Special Autonomy ]]>
<![CDATA[Pelupessy, Eddy]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.1047
<![CDATA[The purpose of Special Autonomy for Papua is to resolve the source of the problem in Papua, especially concerning the rights of indigenous peoples. Normatively, the background of local autonomy for Papua is affirmed in Act No. 21 of 2001 on Papua Special Autonomy. The results shows that the recognition and protection of the land rights of indigenous peoples have been set clearly in the national legal system, such as Agrarian Law, Forest Law, as well as in Mineral and Coal Mining Law. However, recognition and protection of indigenous peoples’ rights to land in various legal products is still ambivalent. The essence of protection of indigenous peoples’ rights to land is also clearly regulated in Act No. 21 of 2001 and Perdasus No. 23 of 2008 has put customary law community on ownership of communal land is not the object of development, especially in the field of investment. The customary right and indigenous land which is the property and become an authority on indigenous peoples must be recognized by the government and regional and national communities about its presence. Therefore, the government should strive to protect the customary right through regulation of the Ministry of Agrarian and Land Agency and other laws related to the issue of customary rights, customary lands, indigenous peoples and their authority.]]>
<![CDATA[Good Faith in Life Insurance Contract by Indonesian Court ]]>
<![CDATA[Huda, Mokhamad Khoirul]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.1046
<![CDATA[This paper reviews both the interpretation of good faith and its implementation by the Court in terms of life insurance contracts. The principle of good faith in life insurance contracts was under the provision of the Article 251 Wet Boek van Kophandel which assigned the obligation of good faith on the insured. Based on the context of its historical and systematical interpretation, the obligation of good faith should be on both sides, the insurer and the insured. The insured had an obligation to inform any material facts and the insurer had to investigate those all facts. Until recent days, however, judges in all levels of Court did not have any shared and full understanding on the interpretation of good faith in life insurance contracts. As the result, many Courts were frequently inconsistent with each other. Hence, the sense of fairness the people perceived from the court verdict was not achieved.]]>
<![CDATA[Optimizing Confiscation of Assets in Accelerating the Eradication of Corruption ]]>
<![CDATA[Danil, Elwi]]>;
<![CDATA[Kurniawan, Iwan]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.717
<![CDATA[Nowadays, corruption is still the most and biggest problem facing by Indonesian, due to its impacts on the nation. It caused huge loss to the state finance and even to the democratic life in this country. Various efforts have been resorted to fight corruption, but the results are unfruitful. Until recently, Indonesia is still the third most corrupt country in Asia according to the survey of Transparency International Indonesia (TII) in 2015, with the Corruption Perceptions Index of 36 points. The fight in eradicating corruption cannot be separated from the effort to deter the criminals through severe punishment. However, ICWâs most recent data shows otherwise. During the first half of 2014, there were 261 accused of corruption, with 242 of them were convicted guilty by the Corruption Courts. Among them, 193 were sentenced lenient (between 1-4 years imprisonment), 44 moderate (4-10 years), and only 4 with over 10 years imprisonment. The average length of sentence is therefore 2,9 years. The lenient sentence can also be found in criminal restitution. Only in 87 of the total cases state compensation is imposed, amounting 87.04 billion rupiahs in total. The amount is only 0.022% of the total financial loss of 3.863 trillion rupiahs. The weak penalty triggered then the idea of impoverishing corruptors as a strategic step to accelerate the eradication of corruption while restoring the loss to the state. In contrast to the criminal restitution, which is restricted only to the state loss caused by the perpetrators, criminal confiscation of assets has no limit in amount.]]>
<![CDATA[Arbitration Award of ICSID on the Investment Disputes of Churchill Mining PLC v. Republic of Indonesia ]]>
<![CDATA[Gunawan, Yordan]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.948
<![CDATA[The research is aimed at analyzing the ICSID (International Centre Settlement Investment Dispute) decision in solving a dispute between Churchill Mining PLC and the Government of the Republic of Indonesia. The case brought to the public attention, because mining license owned by PT. Ridlatama which acquired from Churchill Mining PLC had been revocated. Churchill Mining PLC holds 75% share of PT. Ridlatama and it suffered losses caused by the revocation of its mining license. Churchill Mining PLC filed the case to the local court but it failed. Churchill Mining PLC then sought ruling from International arbitration or ICSID. On December 6, 2016, ICSID issued a decision that clearly threw out Churchill Mining PLC claim. ICSID, the World Bank court, ordered the firm to pay a total of US$.9.446.528 in cost to the Government of the Republic of Indonesia. It is based on the evidences that the UK-Australia company did the fraud and had document forgery of coal mining permit in East Kutai, Indonesia. So the firm has violated the Bilateral Investment Treaties between Indonesia-UK and Indonesia-Australia.]]>
<![CDATA[Method Determining the Contents of the Contract ]]>
<![CDATA[Agus Yudha Hernoko]]>;
<![CDATA[Ghansham Anand]]>;
<![CDATA[Fiska Silvia Raden Roro]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.947
<![CDATA[The contents of the contract are primarily determined by what the real mutually agreed upon by the parties. By interpreting some certain statements, in this case to determine its meaning, to be clear based on what the parties committed themselves. Why is the interpretation required? In facts, on the many cases provided a valuable lesson, how many commercial disputes arise when the performance of the contract. The dispute begins when the parties have a different understanding of the statement that they use in the contract. Indeed, businesses are very familiar with the business processes that they do, but at the time of the business process are set forth in the contract language and designed by those who do not understand the legal aspects of the contract, the contract can be ascertained open possibility for disputes. The power of contract binding (the contents of the agreement) toward to the characteristic and the wide spectrum of the rights and obligations contractually, basically a contract represents the power of performance among others in order implementing the rights and obligations of the parties. As an instrument to understand the contract, the method of determining the content of the contract (e.g., through interpretation, autonomous and heteronomous factors), further can be used to assess the reciprocation of rights and obligations in a meaningful and proportional contractual relationship.]]>
<![CDATA[An Effective Supervision Model of a Standard Clause for Consumer Protection in the Business Transactions ]]>
<![CDATA[M. Syamsudin]]>;
<![CDATA[M. Bekti Hendrie Anto]]>;
<![CDATA[M. Nur Laili Dwi Kurniyanto]]>;
<![CDATA[Intan Puspitasari]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.763
<![CDATA[This research aims to form an effective supervision model of a standard clause to protect consumer’s rights and interests. This study answers the questions the effectiveness of a standard clause supervision carried out by Otoritas Jasa Keuangan [Financial Services Authority (OJK)] and Badan Penyelesaian Sengketa Konsumen [Consumer Dispute Settlement Agency (BPSK)]; effective supervision model of a standard clause which can protect the rights and interest of the consumer. The object of this study are OJK and BPSK as a supervision of a standard clause. The result of this research shows that the supervision of standard clause done by those institutions has not been effective yet, this caused by several factors to wit the weakness of implementing regulation in terms of supervision, unclear supervision mechanism, the weakness of socialization related to the rules of standard clause towards business actors, and other weakness and obstacles faced by both institutions. The effective supervision model of standard clause is being formed that based on five points, namely: (1) the needs of institution/agency reformation who authorize to do supervision of standard clause; (2) the needs to determine the scope of duty and authority of standard clause supervision institution; (3) the needs of determination of material range about standard clause subjected to supervision which comprises: the content, the form, the position and the expression; (4) the needs of precise mechanism of standard clause supervision conducted by supervision institution; (5) the needs of following up the supervision results, especially to the business actors who break the standard clause rules.]]>
<![CDATA[The State’s Obligation to Protect the Individuals Lives from the Consequences of Domestic Violence ]]>
<![CDATA[Vilard Bytyqi]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.897
<![CDATA[The aim of this paper is to treat the important aspects, which deal with State’s obligations to protect individuals lives from the consequences of the domestic violence. Thus, domestic violence is a concerning issue, which derives many consequences that sometimes are irreparable. In many cases, the State is obliged to save individuals lives from the effects of the domestic violence. The State will not be held responsible in all the cases for the consequences of the domestic violence. Due to the scarcity of the regulation of all the situations in the normative terms, the judicial practice that considers the cases of the right to live has evolved greatly, such that it has set many standards in case of increased institutional responsibility towards the consequences caused by the domestic violence. Due to a practical elaboration, the paper as a such will focus in the treatment of cases from the judicial practice in the context of the State’s obligation to save individual’s life, whose life is endangered. Furthermore, there will also be an emphasis in the protection of the right to life and the State’s responsibility in relation to the consequences caused by the actions of the third parties.]]>
<![CDATA[Normativity of Scientific Law in the Perspective of Neo-Kantian Schools of Thought ]]>
<![CDATA[FX. Adji Samekto]]>;
<![CDATA[Ani Purwanti]]>
<![CDATA[ Hasanuddin Law Review VOLUME 3 ISSUE 1, APRIL 2017 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v3i1.761
<![CDATA[Scientific normativity of law conceived as a character inherent in legal science as a sui generis. Jurisprudence basically studies the law, something that initially emerged from the dogmatic belief in philosophy. Dogmatism refuse to alter beliefs one iota. The teachings of dogmatic philosophy stem from the teachings of Plato and reflected in the legal enforceability. Dogmatism in the law is reflected in the Corpus Juris Civilis. Along with the development of post Era Scholastic philosophical thinking, the philosophy synthesizes thought between dogmatic thinking and skeptic has appeared in the Age of Enlightenment. This idea is reflected in Transcendental Idealist philosophy thought of Immanuel Kant. The core idea is that real human beings are given the ability to understand based on empirical experience and actually also able to gain an understanding of the human being that is the essence of symptoms. Transcendental Idealist, thus dynamic, moving to look for values that are useful for life. Transcendental Idealist thought then be adopted Kelsen in the teaching of normativity in legal positivism. Normativity in the teachings of Hans Kelsen’s legal positivism derived from the integration of empirical positivism and idealistic empiricism.]]>
