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[The Use of Hybrid Contract in the Innovation of Islamic Banking Product ]]>
<![CDATA[Nun Harrieti]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1208
<![CDATA[ASEAN Banking Integration Framework (ABIF) provides market access and operational flexibility for Quality ASEAN Banks (QAB) in ASEAN countries. Indonesian sharia banking is faced with various challenges in fulfilling QAB qualification within this ABIF framework, one of which is the need for product innovations that can meet the needs of community transactions. One of the innovation is through hybrid contract. This study aims to analyze the validity of the use of contract hybrid in the innovation of Sharia banking products in order to encounter ABIF including its legal consequences under the prevailing laws and regulations in Indonesia. This paper was a normative juridical research with analytical descriptive approach. The validity of the use of hybrid contract in the innovation of Islamic banking products in Indonesia in order to encounter ABIF is based on the provisions of the DSN-MUI Fatwa which regulates the covenants used in the innovation of Islamic banking products, so that sharia banking that will make product innovation in Indonesia must ask Fatwa on the terms of contract which will be used in product innovation. The legal consequences of hybrid contract in the innovation of sharia banking products in Indonesia in order to face ABIF are subject to the provisions of Financial Services Authority Regulation (POJK) of Products and Activities of Sharia Banks and Sharia Business Units, so banks are required to apply the Sharia Principles in issuing their product innovation supported by the National Sharia Council Fatwa of the Indonesian Ulama Council which become the basis for the issuance of product innovation and accompanied by the Sharia Supervisory Board's opinion on the Product's innovation.]]>
<![CDATA[The Scope of Discretion in Government Administration Law: Constitutional or Unconstitutional? ]]>
<![CDATA[Victor Imanuel W. Nalle]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1316
<![CDATA[Law No. 30 of 2014 on Government Administration (Government Administration Law) has set the scope of discretion in Indonesian legal system. But the form of discretion is limited in scope government decision (KTUN) and factual actions of the government. The restriction implicates circulars or others policy rule is not a form of discretion. In addition, the provisions concerning the terms of use discretion, procedures and legal effect of discretion in the Government Administration Law are not applicable to the use of policy rule. In fact, the substance of discretion in policy rule (e.g. circulars and instructions) has the potential of conflicting laws and regulations and/or General Principles of Good Administration. The legal issues in this study are the constitutionality of the scope of discretion in Article 1 point 9 and Article 23 paragraph (1) of the Government Administration Law. This analysis showed that limits the scope of discretion in Government Administration Law contrary to formal elements, substantive, and control mechanisms within the rule of law. This analysis also suggests the expansion of the scope of discretion in the Government Administration Law and setting policy rules as the object of the petition for judicial review so that there is a control mechanism by trial to discretion in the form of policy rule.]]>
<![CDATA[The Challenges of Water Pollution: Enforcement of Water Pollution Control ]]>
<![CDATA[Utama, I Made Arya]]>;
<![CDATA[Suharta, I Nengah]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1414
<![CDATA[Water demand continues to increase, while its availability was increasingly limited due to pollution. Therefore, the issue of legal sanction in the management of water resources was interesting to be examined because of the void of norm related to the sanction of administrative, civil and criminal sanction in Article 87-120 of Act Number 32 of 2009. So, this research was qualified into normative legal research with legal material from result of library research. The type of administrative legal sanctions were more effectively applied to protect water resources from pollution. Administrative Legal Sanction was not implemented through the judges, more easily and quickly implemented in providing protection against water resources, compared with sanctions of Criminal Law and Civil Law.]]>
<![CDATA[Preserving the Environment within the ASEAN Skies: Lessons from the European Union Emissions Trading Scheme ]]>
<![CDATA[Nugraha, Ridha Aditya]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1343
<![CDATA[The United Nations Framework Convention on Climate Change also known as the Kyoto Protocol has set up a framework to reduce carbon emission. The environmental issue is also being addressed at the international aviation sector through the International Civil Aviation Organizationâs resolutions. As an international organization sui generis, the European Union (EU) has decided to take up a further step with the enactment of the EU Emissions Trading Scheme. The latter has obliged both EU and non-EU airlines to comply with its ambitious goal controlling aviation emissions. However, the legal framework had triggered international objections from legal perspective due to infringement towards the Chicago Convention of 1944 and the international customary law principles. Considering of the nature of the Association of South East Asian Nations (ASEAN) as an international organization without a supranational law order; as well as recent developments in regards to legal framework on emissions, the future of ASEAN skies from an environmental perspective seems uncertain. However, if ASEAN Emissions Trading Scheme shall take place, they should learn from the EU Emissions Trading Scheme past mistakes and the International Civil Aviation Organization resolutions to prevent non-discrimination towards non-ASEAN member statesâ airlines from happening.]]>
<![CDATA[Arrangement of Relationship between State Institutions through the Fifth Amendment of the 1945 Constitution in Indonesia ]]>
<![CDATA[Patra, Rommy]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1244
<![CDATA[The amendment of 1945 Constitution is deemed to have many weaknesses and shortcomings, especially related to the regulate institutional relationship between state institutions. There are some problem related to the obscurity of position of state institutions, the overlapping of duties, functions and authority which lead to the unrealized of checks and balances and the vulnerable for abuse of power. The direction of the arrangement of relationship between state institutions should be: First, to strengthen the implementation and purification of presidential system; Second, to clear up the position of the MPR as a joint session between DPD and DPR in an institutional relationship directed to create a strong bicameralism system; Third, the arrangement of judicial institutions should affirm the concept of MK as the court of law and MA as the court of justice. With the addition of constitutional complaint authority for MK and the authority of the previlegiatum forum for MA. While the arrangement of institutional relationship between MA and KY in supervising the judge should be developed based on the concept of share responsibility; Fourth, to make Attorney General as a constitutional organ that have the same constitutional authority and legal standing as other law enforcement agencies, namely National Police and the Courts (MA and MK). Fifth, the institutionalization of independent state commissions as constitutional organs based on the criteria of having the urgency and function of strengthening the constitutional democratic state and strengthening the mechanism of checks and balances.]]>
<![CDATA[A New Treaty for Fully Autonomous Weapons: A Need or a Want? ]]>
<![CDATA[Maskun, Maskun]]>;
<![CDATA[Ramli, Rafika Nurul Hamdani]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1300
<![CDATA[Autonomous Weapon System (AWS) is still discussed and is considered to the principle of International Humanitarian Law (IHL) particular the principle of distinction and proportionality. In line with moral and ethical issues, some experts and global citizens agree that AWS will likely to distract moral and ethical on a battlefield and are never able to replace human’s feeling. Human beings are responsible over AWS because there is no such a fully autonomous weapons exist. It is always a human commander behind the actions. To bridge the situation on discussion of AWS, a new treaty should be created in order to anticipate further violation.]]>
<![CDATA[Initiating the Community Economic Improvement through Intellectual Property Registration of “Robusta Pinogu Coffee” ]]>
<![CDATA[Ibrahim Ahmad]]>;
<![CDATA[Hasbir Paserangi]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1324
<![CDATA[Robusta Pinogu coffee was well known in both domestic and international markets, with production centers located in Pinogu subdistrict, Bone Bolango Regency, Gorontalo Province, Indonesia. It has unique flavor quality and good reputation in local, national and international markets. Its reputation tends to be counterfeited by irresponsible parties, which would harm producers and consumers of Robusta Pinogu coffee. Related to that, then “Masyarakat Indikasi Geografis Kopi Robusta Pinogu Bone Bolango” (MIG-KRPBB) be aware the need to have geographical indications for Robusta Pinogu coffee. Therefore, MIG-KRPBB submits for registration of geographical indication of Robusta Pinogu coffee to the Government of the Republic of Indonesia through the Ministry of Justice and Human Rights of the Republic of Indonesia based on the prevailing laws and regulations. This research was conducted in Bone Bolango Regency, Gorontalo Province. It is a legal research by using normative and empirical approaches. The results show that the Robusta Pinogu coffee in the market will be more secure than counterfeiting by parties who are not entitled to use the mark of Geographical Indication of Robusta Pinogu Coffee. however, it is expected to realize legal protection in the form of registration of geographical indication of Robusta Pinogu coffee for coffee farmer community so as to increase their economic level.]]>
<![CDATA[Khul’i (Right of Redemption) under Sharia Courts Rules of Bauchi State, Nigeria, 2013: Issues and Challenges ]]>
<![CDATA[Ibrahim Danjuma]]>;
<![CDATA[Umar Sulaiman Abbo Jimeta]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1415
<![CDATA[In the year 2000, most of the States in Northern Nigeria re-introduced Sharia as part of their legal system in disposing of both civil and criminal cases. Bauchi State was among the States that re-introduced Sharia as part of its legal system. Based on that, Sharia Courts were created to replace Area Courts, and Sharia Courts Civil Procedure Rules was enacted to regulate the proceedings before the said Sharia Courts on Civil Matters. The Bauchi State Sharia Courts Civil Procedure Rules, 2001 did not contain a provision on Khul’i. Prior to the amendment of Bauchi State Sharia Courts Civil Procedure Rules, Judges of Sharia Courts were in a serious dilemma as to the amount of money to be paid by a woman in order to relieve herself from the bond of marriage. This is because Khul’i is a right accorded to a wife to remove herself from the union of marriage (to get a divorce) by compensating her husband. In order to address the above problem and others, Sharia Courts Civil Procedure Rules of Bauchi State, 2001 was amended in 2013 and right of Khul’i (Redemption) was incorporated under Order 21 of the Bauchi State Civil Procedure Rules, 2013. With the amendment of the said Sharia Courts Civil Procedure Rules of Bauchi State, instead of addressing the problem of a quantum formula for Khul’i, rather brought a controversy to the said issue. Therefore, this study critically examines the Qur’anic Verses, Hadith and the opinion of the Islamic Scholars on Khul’i and compare them with Order 21 Right of Redemption (Khul’i) of Sharia Courts Civil Procedure (Amendment) Rules of Bauchi State, 2013 so as to ascertain its consistency or otherwise.]]>
<![CDATA[Legal Development of Coastal Marine Management Based on the Idea of Pancasila ]]>
<![CDATA[Jantje Tjiptabudy]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1325
<![CDATA[In relation to the positive law, the management of marine and coastal natural resources, there is also the rule of customary law. Customary law that still lives and develops in indigenous peoples also regulates the management system and utilization of natural resources in coastal and marine areas. Recognition of the rights of indigenous peoples is constitutionally contained in the 1945 Constitution of the State of the Republic of Indonesia where the state recognizes the existence of the Customary Law Community. In Maluku, marine potency management in general is still done traditionally known as marine customary rights that have been going on for generations but not yet fully recognized either by the government or entrepreneurs who are actually important partners in the development process.]]>
<![CDATA[The Restriction of Suffrage in the Perspective of Fair Election in Indonesia ]]>
<![CDATA[Khairul Fahmi]]>;
<![CDATA[Zainal Arifin Mochtar]]>;
<![CDATA[Saldi Isra]]>;
<![CDATA[Zulkifli Aspan]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 1, APRIL 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i1.1405
<![CDATA[In order to ensure the suffrage of citizens is implemented according to the principle of fair election, regulations on general and local elections may contain various kinds of restriction of suffrage. The rights to vote as well as be voted must be restricted in a way that the process of election may run seamlessly and generate a government capable of exercising the mandate of the people. However, such restriction must be performed in a fair and proportionate manner. The restriction must not cause uncertainty or even distinction of treatment towards the citizens. By means of normative legal research, this research comes to a conclusion that restriction of suffrage in general and local elections have yet been performed fairly. Legal uncertainty in the restriction of suffrage still occurs. Simultaneously, different treatment towards citizens who intend to nominate themselves is still contained in the norms related to the requirements to vote and be voted.]]>
