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
Articles
293 Documents
<![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[The Constitutional Interpretation on the Natural Resource: Originalist Vs Non-Originalist Interpretation ]]>
<![CDATA[Herdiansyah Hamzah]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 3, DECEMBER 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i3.2022
<![CDATA[Judges served in constitutional court have freedom to utilize and elaborate constitutional interpretation method used to examine the law of the Constitution of the Republic of Indonesia year 1945 in accordance to their own understanding. Not only that the constitutional interpretation was not regulated in positive law, judges also have independency in making new law discovery (rechtsvinding). Therefore, the interpretation method used by judges in the constitution court is basically determined by each case displayed at the moment. It means that the future of constitutional interpretation regulated by the judges in constitutional court is depending on the lawsuit reported in judicial review. On the other hand, constitutional interpretation on natural resource has to be based on original (originalist) interpretation rooted by original intent or text stated in the constitution of the republic of Indonesia year 1945, along with document of disagreement on its formulation (memorie van toelichting). Original interpretation is aimed at avoiding the shift at the origin of substantial intention of natural resources management. Nevertheless, non originalis interpretation will remain usable, but it is limited only for technical level, so that natural resources management will stay updated while keeping the basic foundation of natural resources management as firmly stated in constitution. ]]>
<![CDATA[Fake News as a Democratic Anathema: A Comparative Study between India and Indonesia ]]>
<![CDATA[Ishita Sharma]]>;
<![CDATA[Mansi Aggarwal]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 3, DECEMBER 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i3.2033
<![CDATA[The undeniably mind boggling media landscape has tossed fresh difficulties to an unsettled environment of media policy and that is why the market is denuded with fake news: scattered through social media intermediaries. Absence of effective laws for the same, have worsened the situation in recent past. Through this paper the researchers have tried to inspect how the propagation of fake news has upset the public sphere and potential arrangements that can be executed to check the plague of fake news in context of India and Indonesia, the prime democracies. There is boisterous discussion on fake news being utilized to create a rosy impression of the politicians in the minds of citizens. Therefore, the researcher shall also cover this aspect by analyzing how fake news has affected elections and how it was used as a tool of mass deception respectively. Finally, it attempts to analyze various strategic initiatives taken by both the nations, and the potential measures which could be adopted to limit the progression of fake news.]]>
<![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[Legal Protection for Domestic Workers: The Experience of Indonesia ]]>
<![CDATA[Sakka Pati]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 3, DECEMBER 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i3.2218
<![CDATA[Given its social and economic invisibility and the accompanying low social status, domestic work is often exploitative. This research was aimed to find out and formulate the substance of legal protection for domestic workers in legislation in the field of labor in terms of the perspective of justice. It uses a statute, case, and socio-legal approaches. It was conducted in 3 (three) major cities, namely Jakarta, Yogyakarta and Makassar. The results of research showed that the substance of legal provisions in general for the protection of domestic workers, especially in labor legislation basically has not been able to guarantee justice and legal certainty because the responsibility of State has not been implemented in the existing legal substance. The paradigm of harmonization and the principles of legal agreements in the field of labor have not guaranteed justice and legal certainty for domestic workers. It is evidenced by the view of the profession of domestic workers who are positioned as informal workers, in addition they are not being accommodated as an element protected by law, it is also related to the protection of basic rights and labor social security does not cover the existence of domestic workers.]]>
<![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[Post-Asean Agreement on Transboundary Haze Pollution: How to Settle the Dispute Settlement? ]]>
<![CDATA[Fadia Fitriyanti]]>;
<![CDATA[Yordan Gunawan]]>
<![CDATA[ Hasanuddin Law Review VOLUME 5 ISSUE 3, DECEMBER 2019 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v5i3.1541
<![CDATA[Forest fire happened several times in Indonesia which impacting neighboring countries, such as Malaysia and Singapore. ASEAN tried to "heal" and prevent the possibility of similar events by signing the ASEAN Agreement on Transboundary Haze Pollution (AATHP) for its members. In line with that, this research examined the concern of the state responsibility principle and its dispute resolution as well as a mechanism under the Agreement in dealing with the transboundary haze pollution in ASEAN. The research conducted by using normative theory by using primary, secondary and tertiary legal materials, collected from library research. Data analysis uses statute approach and case approach. Furthermore, the resulting research is in the form of analytical descriptive. The researchers argue that AATHP it is not explained in detail about the forms, mechanisms, and consequences that can be given to a country that has caused forest fires in the national jurisdiction and proven damage other countries. The researchers conclude that there should be a clear definition of state responsibility by means of a visible dispute settlement. Those mentioned steps are aimed to prepare for both preventive and punitive legal action for all members of ASEAN in dealing with the case of transboundary haze pollution.]]>
<![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 Miserable Loss from Yemeni Conflict: Can International Law Provide Reparation for Mental Injury? ]]>
<![CDATA[Komang Ayu Nuriasih]]>;
<![CDATA[I Made Budi Arsika]]>
<![CDATA[ Hasanuddin Law Review VOLUME 6 ISSUE 1, APRIL 2020 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v6i1.2179
<![CDATA[As the home of the world’s worst humanitarian crisis, Yemen can be an example to reveal how horrifying the mental health issues in conflicting areas can be. Since 2014, the ongoing conflict in Yemen has been resulting not merely in physical losses and injuries, but also mental catastrophe as its inevitable consequence. This article is a legal research that aims to analyze how mental injuries or psychological damages are being acknowledged as a real impact of armed conflict, to further be considered as a precondition for the reparation at the end of the conflict. The article suggests that the acknowledgment of the mental impacts of armed conflict needs to be taken into concern and consideration, especially from the perspective of hard laws related to the IHL. Besides, the approach of soft law can be applied in attribution with the ongoing conflict in Yemen.]]>
