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[Arbitration: Understanding It in Theory and Indonesian Practice ]]>
<![CDATA[Maskun, Maskun]]>;
<![CDATA[Achmad, Achmad]]>;
<![CDATA[Naswar, Naswar]]>;
<![CDATA[Bakti, Fauziah P.]]>;
<![CDATA[Amaliyah, Amaliyah]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1945
<![CDATA[Cross-border transactions have always attracted legal risks. Cross-border legal issues are emerging as a separate area of commercial risk that needs to be more precisely identified and better managed. Many cases of injury to multinational companies which would formerly have been pursued as a diplomatic claim by the nation state of the company are now resolved by arbitration between the company and the respondent state. Arbitration is one of dispute settlement bodies to resolve some issues particular trade, business, investment, and financial issues. Those issues are shaping the range and significance of the cross-border legal issue. Those issues also become a crucial issue to be dealt with the arbitral institution. The reason why the parties of contract choose arbitration is because of the place of arbitration, neutrality, confidentiality, cost and speed, recognition and enforcement of arbitral awards, refusing of arbitral awards, a model of arbitration, and arbitration institution. Those reasons are assumed also to be enacted in Indonesian arbitration practice and in the Islamic law.]]>
<![CDATA[Trends in the Regulation of Hate Speech and Fake News: A Threat to Free Speech? ]]>
<![CDATA[Santuraki, Suleiman Usman]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1625
<![CDATA[The Information and Communication Technology (ICT) revolution heralding the emergence and dominance of social media has always been viewed as a turning point in free speech and communication. Indeed, the social media ordinarily represents the freedom of all people to speech and information. But then, there is also the side of the social media that has been often ignored; that it serves as platform for all and sundry to express themselves with little, if any regulation or legal consequences. This as a result has led to global explosion of hate speech and fake news. Hate speech normally lead to tension and holds in it, the potential for national or even international crisis of untold proportions. It also has the likelihood to scare people away from expressing themselves for fear of hate-filled responses and becoming a source of fake news. Using doctrinal as well as comparative methodologies, this paper appraises the trend between states of passing laws or proposing laws to regulate hate speech and fake news; it also appraises the contents of such laws from different countries with the aim of identifying how they may be used to suppress free speech under the guise of regulating hate speech and fake news. It argues that the alarming trend of hate speech and fake news presented an opportunity for leaders across the globe to curb free speech. The paper concludes that the advancement in ICT helped in a great deal to advance free speech; it may as well, because of the spread of hate speech and fake news, lead to a reverse of that success story.]]>
<![CDATA[Concept and Position of Peremptory Norms (Jus Cogens) in International Law: A Preliminary Study ]]>
<![CDATA[Handayani, Irawati]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1709
<![CDATA[Peremptory norms or jus cogens hold a unique position in international law. Unlike customary international law and treaty law, they abide no derivation and bind all states regardless of their willingness to be bound. Some scholars had elaborated fundamental theories to answer the theoretical background of jus cogens. However, they have never reached a satisfactory result. This study aims to elaborate the theoretical background of jus cogens and to observe the relationship between jus cogens, obligation erga omnes, and customary international law. The positivists recognize that jus cogens is an imperative norm within state practice and opinio juris. The positivist theory is not in line with the concept that jus cogens bound to states without their consent since every state has their sovereignty and cannot be bound by any kind of provision without consent. The proponents of the natural law theory stated that peremptory norms are inherited from the tradition of natural law so that it is the highest norm in international law that directly binds countries. On the other hand, the public order theory states that international law recognizes important (imperative) norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law. The three theories are considered insufficient to answer the philosophical basis of jus cogens. In its development, therefore, some new theories have been developed to challenge the basis of jus cogens.]]>
<![CDATA[The Role of Indonesian Constitutional Court in Resolving Disputes among the State Organs ]]>
<![CDATA[Iwan Satriawan]]>;
<![CDATA[Khairil Azmin Mokhtar]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1669
<![CDATA[The paper attempts to assess the role of the Constitutional Court of Indonesia in the process of consolidating democracy in the country. Examinations are made on the court’s decisions regarding dispute concerning jurisdiction among state organs. This paper argues that the Constitutional Court has not made a significant impact on the promotion of democracy. It is believed that the failure of the Court to consolidate democracy through its decisions regarding dispute concerning jurisdiction among state organs could be attributed to two main reasons. The first is due to the unclear concept of subjectum litis of the petitioners to have legal standing in the Constitutional Court, and the second is the lack of understanding of the subject matter jurisdiction of the Court. Due to uncertainties only, small numbers cases registered and heard by the Constitutional Court. Furthermore, most of the cases registered in the Court either been rejected or not been accepted by the judges. Despite the misgivings, the Court is still relevant and have certain contributions towards democracy. It has to a certain extent that enhances the working of checks and balances mechanisms among state organs. It is believed that the court could be more reliable and enhance its function in promoting democracy in the country by defining clearly classification of the subjectum litis as well as the objectum litis of the dispute that it may hear.]]>
<![CDATA[Persons with Intellectual Disability and Access to Justice in Nigeria: Challenges and the Way Forward ]]>
<![CDATA[Augustine Edobor Arimoro]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1561
<![CDATA[Conservatively, there are approximately about two million persons in Nigeria who may be referred to as persons with intellectual disabilities. These persons suffer from several challenges ranging from economic to non-inclusion in the society. In the paper, the discussion focuses on persons with intellectual disabilities and the effective access to justice as a fundamental right. The paper finds that even though Nigeria has adopted and ratified the United Nations Convention on the Rights of Persons with Disabilities, the Federal Government of Nigeria has not been proactive in supporting the persons with disabilities in the country to enjoy these rights. Furthermore, despite the provision in the 1999 Constitution of the Federal Republic of Nigeria to ensure freedom from discrimination, there is no direct effect on procedure to ensure that the rights of the disabled persons are protected. The paper proposes for a framework for the protection of the person with intellectual disability which includes legal protection, legal awareness, legal aid, adjudication and for civil society oversight of the access of persons with intellectual disabilities to justice.]]>
<![CDATA[Reconciliation of Humanitarian Law and Human Rights Law in Armed Conflict ]]>
<![CDATA[Ashri, Muhammad]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1348
<![CDATA[A common insight on human rights law as an instrument that aimed to protect the human dignity and values are often regarded to be separate from international humanitarian law. In relation to the norms, the difference between the two concepts related to the current conflict arise many debates. This paper reviews the common thread of the two international legal instruments. The connection between the two can be elaborated by explaining the concept; similarities and dissimilarities; and linking the basis for the establishment of legal instruments between human rights law and international humanitarian law. The results of research indicated that between international humanitarian law and human rights law have relevant rules applied in conflict situations. International humanitarian law as an instrument of international law is specifically applied in situations of armed conflict, whereas human rights law as a general instrument can be applied both in peace or conflict conditions. In a condition of armed conflict, international humanitarian law as a lex specialist is not widely interpreted to set aside human rights law. Human rights law is applied if facts or incidents exist in armed conflict that is contrary to human values.]]>
<![CDATA[Accountability in Government Contracts: A Measure of Performance from the Commitment-Making Officials? ]]>
<![CDATA[Mohammad Zamroni]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.1074
<![CDATA[Public-private partnership is an alternative defrayal which gives chances for private sectors to get engaged in financing the government’s good and service suppliers through business contract. As contracts commonly made, failure may happen while implementing the contract, known as a tort. Therefore, government contracts are conducted by Commitment-Making Officials (hereinafter, PPK), authorized to make and implement it. Thus, the accountability over the contract failure is inseparable with the authorized PPK. This study aimed to examine the accountability of PPK when failures happen in the implementation of government contract. This paper using legal research method along with statute and conceptual approaches, the finding showed that PPK were accountable both as officials and individual. As officials, their accountability is apparent when they did tort on the provision mentioned in a government contract they had signed and established. As individuals, their accountability is apparent on which they did maladministration.]]>
<![CDATA[The Arrangement of Investment Policy for the Protection of Indigenous People’s Rights ]]>
<![CDATA[Wamafma, Filep]]>;
<![CDATA[Moenta, Andi Pangerang]]>;
<![CDATA[Patittingi, Farida]]>;
<![CDATA[Ruslan, Achmad]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.2403
<![CDATA[The investment law policies have a positive influence on the interests and welfare of all Indonesian people. However, many legal problems arise due to overlapping regulations both at the central and regional government levels, and also in term of the implementation of decentralization. The results show that the arrangement of investment policy in West Papua against the recognition and respect for Papua indigenous people's rights are still limited to universal policies. Nationally, the policy has not clearly revealed how the form of recognition and respect for the rights of indigenous peoples and/or Papuan indigenous peoples rights related to the presence of investments in West Papua. On a regional scale, the provincial government policy in the form of regional regulations, only covers the scope of investment in West Papua, but does not fully explain how the form of recognition and respect for Papua indigenous peoples related to investment. Hence, related with the alignment of Papua indigenous people's rights in the field of ideal investment arrangements in West Papua was began with the concept of Bottom-up Development Planning, by involving indigenous peoples as a whole. This concept is based on the Optimum Suitable Yield (OSY) where the amount of natural resources that can be exploited must be based on calculations from various perspectives such as biology, economics, and even socio-political perspectives.]]>
<![CDATA[The Arrangement of Investment Policy for the Protection of Indigenous People’s Rights ]]>
<![CDATA[Wamafma, Filep]]>;
<![CDATA[Moenta, Andi Pangerang]]>;
<![CDATA[Patittingi, Farida]]>;
<![CDATA[Ruslan, Achmad]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 2, AUGUST 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i2.2403
<![CDATA[The investment law policies have a positive influence on the interests and welfare of all Indonesian people. However, many legal problems arise due to overlapping regulations both at the central and regional government levels, and also in term of the implementation of decentralization. The results show that the arrangement of investment policy in West Papua against the recognition and respect for Papua indigenous people's rights are still limited to universal policies. Nationally, the policy has not clearly revealed how the form of recognition and respect for the rights of indigenous peoples and/or Papuan indigenous peoples rights related to the presence of investments in West Papua. On a regional scale, the provincial government policy in the form of regional regulations, only covers the scope of investment in West Papua, but does not fully explain how the form of recognition and respect for Papua indigenous peoples related to investment. Hence, related with the alignment of Papua indigenous people's rights in the field of ideal investment arrangements in West Papua was began with the concept of Bottom-up Development Planning, by involving indigenous peoples as a whole. This concept is based on the Optimum Suitable Yield (OSY) where the amount of natural resources that can be exploited must be based on calculations from various perspectives such as biology, economics, and even socio-political perspectives.]]>
