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INDONESIA
Masalah-Masalah Hukum
Published by Universitas Diponegoro
ISSN : -     EISSN : 25274716     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Arjuna Subject : -
Articles 762 Documents
 73   74   75   76   77 
REPRODUCTIVE JUSTICE AND WOMEN’S HEALTH RIGHTS IN INDONESIA: BETWEEN LEGAL PROTECTION AND STRUCTURAL INEQUALITY Yusrizal Hasbi; Ferdy Saputra; Hadi Iskandar; Romi Asmara
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.47-81

Abstract

Women’s reproductive health rights constitute a fundamental component of human rights, imposing an obligation on the state to respect, protect, and fulfill women’s health rights in a fair, equal, and non-discriminatory manner. This study aims to analyze the legal protection of women’s reproductive health rights in Indonesia from legal and human rights perspectives, with particular reference to Law Number 17 of 2023 concerning Health and Government Regulation Number 28 of 2024. This research employs a socio-legal method with a descriptive-analytical approach, supported by library research and policy analysis. The data consist of primary, secondary, and tertiary legal materials, including statutory regulations, academic literature, human rights instruments, and relevant policy documents, which are analyzed qualitatively through deductive reasoning. The findings indicate that Indonesia has developed a relatively progressive legal framework through the strengthening of reproductive rights, the expansion of maternal healthcare services, protection against discrimination and violence, and the recognition of women’s reproductive autonomy. However, the implementation of these legal protections continues to face significant structural challenges. These include the unequal distribution of healthcare workers, limited healthcare infrastructure in remote and disadvantaged areas, socio-cultural barriers rooted in patriarchal norms, insufficient reproductive health education, and weak state accountability mechanisms in ensuring equal access to healthcare services. Furthermore, normative ambiguities concerning religious and moral values in the regulation of reproductive rights may potentially restrict women’s autonomy and create uncertainty in service delivery. The study argues that the protection of women’s reproductive health rights cannot rely solely on formal legal recognition, but must also be supported by effective implementation, institutional responsiveness, and substantive equality. Therefore, strengthening legal protection requires harmonization between national and regional policies, reinforcement of a human rights-based and gender-responsive approach, and improvement of equitable, accessible, and accountable healthcare services for women throughout Indonesia.
SYNTHETIC CHILD SEXUAL ABUSE MATERIAL AND INDIAN CRIMINAL LAW REFORM: A COMPARATIVE STUDY OF UK AND US LEGISLATIVE RESPONSES D. Sankar; Safoora Ahad
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.258-283

Abstract

The rapid development of artificial intelligence (AI) has transformed various sectors, but it has also created serious challenges for child protection, particularly in the digital environment. One of the most alarming developments is the emergence of AI-generated child sexual abuse material (CSAM), which enables the creation, possession, manipulation, and dissemination of abusive content without requiring direct physical contact with a child. This phenomenon forms part of a broader problem involving synthetic media, including non-consensual intimate deepfakes (NCID), which constitute a form of image-based sexual abuse and disproportionately affect women and girls. In India, the urgency of this issue is reflected in the rising number of cybercrimes against children. The National Crime Records Bureau (2022) reported a significant increase in such offences, while the National Cyber Crime Reporting Portal documented approximately 1.94 lakh CSAM-related cases by April 2024. India’s legal response to online child sexual abuse is primarily governed by the Protection of Children from Sexual Offences (POCSO) Act, the Information Technology Act, 2000, and the Bharatiya Nyaya Sanhita, 2023. However, these frameworks were not specifically designed to address the legal and evidentiary complexities posed by AI-generated, synthetic, morphed, and tool-assisted CSAM. The absence of explicit provisions on AI-generated CSAM creates gaps in enforcement, classification, liability, and regulatory oversight. This study adopts a qualitative doctrinal research methodology to examine the adequacy of India’s existing legal framework in addressing AI-generated CSAM. It critically analyses relevant statutory provisions, legal principles, and policy gaps, while also conducting a comparative assessment of recent legislative developments, including the UK’s Crime and Policing Act, 2026, and the U.S. Take It Down Act, 2025. Drawing on these comparative insights, the study argues that India must strengthen its legal, regulatory, and technological infrastructure to respond effectively to emerging AI-enabled cyber threats and to ensure robust protection of children in the digital age.
ETHICAL BOUNDARIES OF GENETIC ENGINEERING PATENTS IN INDONESIA AND MALAYSIA Hari Sutra Disemadi; Nor Akhmal Hasmin; David Tan; Windi Afdal; Nadia Carolina Weley
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.148-170

Abstract

Genetic engineering increasingly pushes the boundaries of science, technology, and ethics by raising difficult questions about the acceptable limits of human intervention in living organisms. Its relationship with intellectual property law is particularly complex because patent protection is intended to reward innovation and encourage scientific development, while also being constrained by ethical limits expressed through ordre public and morality principles. This study examines how Indonesian and Malaysian intellectual property law regulate patent protection for genetic engineering inventions, particularly in relation to ethical safeguards. Using doctrinal legal research with a comparative approach, this study analyses the relevant patent statutes, legal concepts, and regulatory structures in both jurisdictions. The findings show that Indonesia provides a relatively stronger legal basis than Malaysia, mainly because its patent framework contains more developed definitions concerning invention, technology, and scientific methods. These definitions create broader conceptual space for recognising genetic engineering as a patentable field while also allowing ethical considerations to be developed through implementing regulations. However, Indonesia still lacks concrete examination standards and operational mechanisms for assessing ethical risks in genetic engineering patents. Malaysia, by contrast, recognises ordre public and morality clauses only at a general level and primarily uses them as grounds for refusing patent applications. Its legal framework also provides only limited acknowledgement of the patentability of genetic engineering inventions, especially in relation to microorganisms, without establishing a clear ethical review mechanism. This study argues that both jurisdictions require stronger normative and institutional safeguards to ensure that patent protection for genetic engineering does not undermine public morality, human dignity, environmental integrity, or broader public interest. Indonesia should develop implementing regulations and patent-examination guidelines that translate its broader amended patent definitions into concrete ethical safeguards. Malaysia should amend the Patents Act 1983 to provide an explicit ethical review mechanism for genetic-engineering-derived microorganism patents and clearer standards for applying ordre public and morality exclusions.
WHEN RESTORATIVE JUSTICE BECOMES CASE NEGOTIATION: LEGAL VALIDITY AND NORMATIVE DISTORTION IN CRIMINAL JUSTICE Andika Wahyudi Gani; Nurul Maghfirah Surianto
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.171-196

Abstract

Restorative justice is normatively designed to repair harm and restore social relations among offenders, victims, and the community. However, when incorporated into formal criminal justice institutions, it may shift from a relational and reparative process into a negotiation-oriented mechanism for case resolution, particularly when institutional procedures prioritize settlement, compensation, forgiveness, or case termination over substantive restoration. This article examines that shift in the Indonesian criminal justice system, where restorative justice has been institutionalized through police, prosecutorial, and judicial regulations and further grounded in Law Number 20 of 2025 concerning the Criminal Procedure Code. Using doctrinal legal research through conceptual and statutory approaches, this article applies the Three-Pillar Institutional Legitimacy Framework, consisting of legal validity (P1), normative fidelity (P2), and public rational justification (P3). The analysis shows that Law Number 20 of 2025 strengthens the legal validity of restorative justice by regulating restorative mechanisms in Articles 79–88 and positioning prior sectoral regulations within a higher statutory framework through Articles 361 and 367. Nevertheless, legal validity alone does not guarantee substantive legitimacy. Restorative justice may still undergo normative distortion when institutional actors treat agreement, forgiveness, compensation, or procedural closure as sufficient indicators of restoration without examining victim recovery, offender accountability, voluntary participation, community involvement, guarantees of non-repetition, and the public interest. In such circumstances, public rational justification may appear coherent at the surface level while lacking normative depth. This configuration constitutes pseudo-ethical legitimacy: institutional action remains legally valid but loses the substantive restorative foundation that justifies restorative justice. This article argues that strengthening restorative justice in Indonesia requires legal harmonization and sustained institutional commitment to preserving it as a mechanism for repairing harm, restoring social relations, and preventing its reduction into a procedural tool for case disposal.
DISASTER RISK REDUCTION AND SOCIAL JUSTICE FRAMEWORK IN INDONESIAN LAW: FROM NATIONAL TO LOCAL REGULATION Lita Tyesta Addy Listya Wardhani; Amalia Diamantina; Athanasius Allan Darma Saputra
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.197-230

Abstract

This study examines the extent to which disaster risk reduction (DRR) law incorporates social justice as a normative foundation. It argues that disaster law, particularly within the contemporary DRR paradigm that prioritises prevention, resilience, and collaborative governance, must move beyond technical risk management and embed justice in both substance and procedure. Social justice in disaster governance is conceptualised through four interrelated dimensions: distributive justice, procedural justice, human rights, and good governance. Drawing on Alexy’s theory of the ideal dimensions of law, the study contends that the legitimacy of disaster law should not rest solely on formal validity, but also on its orientation toward substantive justice. To assess the realisation of social justice, this study develops an analytical framework consisting of five indicators derived from those dimensions: protection of vulnerable groups, equitable disaster funding, access to disaster-related information, meaningful public participation, and institutional accountability. Using qualitative legal research with a doctrinal approach, the study applies this framework to international, national, and sub-national instruments, including the Sendai Framework for Disaster Risk Reduction, Indonesian Law No. 24 of 2007 on Disaster Management, and Lampung Province Regional Regulation No. 6 of 2024 on Disaster Management. The findings show that these legal frameworks generally recognise elements of social justice, yet significant normative and institutional gaps remain. Vulnerable groups are often defined in broad and static terms, insufficiently reflecting intersecting factors such as gender, disability, age, socioeconomic status, and geographical marginalisation. In addition, participation is commonly acknowledged as a principle, but is rarely supported by clear mechanisms that guarantee meaningful community involvement in decision-making. Strengthening these indicators is essential to transform disaster law into a justice-oriented framework capable of protecting vulnerable populations and advancing DRR objectives.
THE LIVING LAW IN INDONESIA’S NEW CRIMINAL CODE: LEGAL PLURALISM, INDIGENOUS AUTONOMY, AND THE RISK OF STATE CO-OPTATION Nikodemus Niko; Heni Widiyani; Fitri Kurnianingsih; Emmy Solina; Endri Endri; Angelo Lenard Yu; Syarifah Ema Rahmaniah
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.231-257

Abstract

This study critically examines the incorporation of living law into Law Number 1 of 2023 concerning the Indonesian Criminal Code (KUHP), with particular attention to how the state defines, recognizes, and regulates legal norms originating from Indigenous and local communities. Although living law is often framed as a progressive instrument for accommodating legal pluralism, its formal inclusion in criminal law raises complex sociological concerns regarding the relationship between state authority and community-based normative systems. This study employs a qualitative socio-legal approach through critical analysis of statutory provisions, legal documents, and relevant scholarly debates on legal pluralism, customary law, and criminal law reform in Indonesia. The analysis shows that the recognition of living law in the new Criminal Code is not merely an acknowledgment of social norms that already exist within society. Instead, such recognition operates through state-defined criteria that determine which customary norms may be considered valid, legitimate, and enforceable within the formal criminal justice system. As a result, living law becomes a mechanism through which the state validates, regulates, and potentially absorbs Indigenous and local normative orders into the structure of national law. This process creates an ambivalent legal condition: while customary norms appear to gain formal recognition, their autonomy may be restricted by the requirements, classifications, and institutional procedures imposed by the state. This study argues that the incorporation of living law reflects not only an effort to recognize legal diversity, but also a broader strategy of governance that reinforces state control over legal plurality. The originality of this study lies in its sociological critique of living law as a regulatory instrument within contemporary Indonesian criminal law reform. By shifting the focus from formal recognition to power relations, this study contributes to debates on legal pluralism, Indigenous legal autonomy, and the politics of criminal law codification in Indonesia.
BALANCING TECHNOCRACY AND POLITICS IN THE INDONESIA’S MULTI-PARTY PRESIDENTIAL SYSTEM: LEGAL CHALLENGES IN DESIGNING STATE MINISTRIES Mustafa Lutfi; Aditya Prastian Supriyadi; Kurniasih Bahagiati
Masalah-Masalah Hukum Vol 55, No 1 (2026): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.55.1.2026.118-147

Abstract

The institutional design of state ministries is a central element of Indonesia’s constitutional system because it determines how executive authority is organised, coordinated, and made accountable. Although Article 17 of the 1945 Constitution grants the President authority to establish ministries, political practice shows that cabinet formation is shaped not only by technocratic considerations but also by coalition bargaining within Indonesia’s multiparty presidential system. This study analyses the legal politics of ministerial design, focusing on the tension between constructing a proportional and efficient cabinet and accommodating the political demands of coalition parties. Using doctrinal legal research, this study examines the formation of the Kabinet Merah Putih under President Prabowo Subianto, which consists of 48 ministries, as its main empirical reference. The analysis is conducted through normative mapping of Presidential Regulation Number 139 of 2024 and Law Number 61 of 2024, as well as functional mapping of overlapping ministerial mandates. The findings show that ministerial design in Indonesia is frequently influenced by political pragmatism, producing institutional expansion that may weaken coordination, accountability, fiscal rationality, and functional clarity. This study evaluates ministerial design through five normative criteria: effectiveness, functional proportionality, accountability, conflict-of-interest prevention, and fiscal rationality. The analysis argues that the decisive constitutional issue is not whether ministers come from partisan or non-partisan backgrounds, but whether they possess substantive competence, integrity, and accountability in performing public functions. This study also examines the relevance and limitations of a technocratic cabinet model in Indonesia by comparing practices in Singapore, Germany, Chile, and Uruguay. It argues that Indonesia requires a hybrid cabinet model that combines political representation with technocratic professionalism. Strengthening the legal framework on state ministries is therefore necessary to create a more rational, effective, accountable, and professional cabinet structure aligned with Indonesia’s constitutional objectives while preserving democratic legitimacy and executive coherence in institutional practice.
STRENGTHENING GOVERNANCE IN STATE-OWNED ENTERPRISES: A CRITICAL EVALUATION OF BPI DANANTARA’S MANAGEMENT AND REFORM CHALLENGES Yohanes Paruntungan Sitorus; Arini Nur Annisa; Khansa Anindita Belva; Farel Bryan Ursipunny
Masalah-Masalah Hukum Vol 54, No 3 (2025): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.54.3.2025.431-445

Abstract

The governance of State-Owned Enterprises (SOEs) in Indonesia faces significant challenges, particularly regarding the independence of management, the separation of powers between regulators and operators, and political interference. This study examines the governance issues within BPI Danantara, a newly established national investment institution tasked with managing a range of strategic SOEs. Despite its potential to optimize state asset management, BPI Danantara’s governance has been hindered by the continued involvement of public officials in dual roles, which undermines managerial independence. The overlapping functions of business and state interests within SOEs create ambiguity in decision-making and open the door to inefficiencies, political interference, and corruption. A key governance issue is the practice of concurrent positions, which compromises the principle of independence, a core element of good governance. This research analyzes the implications of the Indonesian Constitutional Court Decision No. 80/PUU-XVII/2019, which prohibits Deputy Ministers from holding concurrent positions in SOEs, and the limited enforcement of this decision. It highlights the need for a more robust regulatory framework for BPI Danantara to prevent political interference and ensure transparent, accountable management. The study advocates for the establishment of a specific law for BPI Danantara, including prohibiting concurrent positions and introducing an independent supervisory board. This would help safeguard managerial independence, align decision-making with long-term national interests, and enhance the institution’s role in driving economic growth. By implementing these reforms, BPI Danantara can become a model for effective SOE governance and contribute to improving Indonesia’s economic competitiveness.
RE-EVALUATION OF CREDITOR PROTECTION IN MORTGAGE ENFORCEMENT: THE LEGAL PERSPECTIVES OF THE AUCTION ENFORCEMENT OF MORTGAGE OBJECTS UNDER THE INDONESIAN LAW Ayup Suran Ningsih; Norhaini Binti Nion; Paramita Prananingtyas; Harumsari Puspa Wardhani
Masalah-Masalah Hukum Vol 54, No 3 (2025): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.54.3.2025.446-461

Abstract

This paper discusses the usage and application of mortgage rights in Indonesia, especially Law No. 4 of 1996, which is intended to offer legal protection to the creditors and debtors in credit agreements. The collateralized debt agreements are frequently used in business financing, and land is usually the security since it is not prone to fluctuations. With the introduction of the Mortgage Rights Act, a more established framework of such agreements has been made, and legal certainty of creditors has been increased through giving them the power to make claims against collateral in the event of default of the debtor. Nevertheless, the application of mortgage rights, especially in the implementation process, is not without problems, though it has its benefits. Creditors can also challenge laws: a third party can claim them, or a debtor can challenge their efforts, and legal challenges by creditors are not always straightforward to execute due to procedural hold-ups. The law offers preventative legal security in the form of clear agreements and valid collateral instruments. Yet, it is full of repressive provisions, given that creditors are also granted legal action in the event of default. The paper puts a lot of emphasis on the need to balance the interests of the creditors and the interests of the debtors and emphasizes the necessity of having a lean and efficient process. Although the decision of the creditors to buy the mortgage rights presents substantial benefits, the mechanism of overcoming the process of the auction and the ability to guarantee the best outcomes to all participants can be improved. In general, the paper highlights the necessity to develop such legal frameworks further in order to make the goals of the Mortgage Rights Act to the fullest extent, to provide a more stable and reliable financial environment.
LEGAL UNIFICATION AND PLURALISM IN CUSTOMARY MARRIAGE REGISTRATION: LESSONS FROM THE BADUY INDIGENOUS COMMUNITY Muhyidin Muhyidin; Budi Setyawan
Masalah-Masalah Hukum Vol 54, No 3 (2025): MASALAH-MASALAH HUKUM
Publisher : Faculty of Law, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/mmh.54.3.2025.462-485

Abstract

Marriage registration within the Baduy community reflects an inherent tension between customary law and state law, particularly within the framework of the Compilation of Islamic Law  in Indonesia. This study aims to analyze the differences in marriage registration practices between Baduy customary law and Islamic legal regulations in Indonesia, as well as to identify the social and legal implications arising from these differences. This research employs a qualitative approach using a socio-legal method. Data were collected through literature review, interviews with customary leaders, and field observations. The findings indicate that the Inner Baduy (Baduy Dalam) community continues to maintain a customary marriage system that does not require formal registration within the state administrative system. This practice is grounded in a strong adherence to customary norms, which are regarded as possessing high social legitimacy within the community. In contrast, the Outer Baduy (Baduy Luar) community has begun to demonstrate a degree of openness toward the national legal system by accepting administrative marriage registration. The area of Cicakal Girang serves as a point of compromise between customary law and state law, where marriage registration is carried out without entirely abandoning traditional values. Nevertheless, several differences remain evident in marital practices within the Baduy community, particularly in relation to arranged marriages, the prohibition of polygamy, and the mechanisms governing divorce. In this context, marriage registration in Cicakal Girang represents a practical accommodation between customary law and state law, although certain divergences persist in the implementation of marital norms. This study recommends the establishment of more intensive dialogue between the government and indigenous communities to bridge the gap between state law and customary law. An inclusive approach that is sensitive to local wisdom is essential in developing a more adaptive legal system. Such an approach would ensure the protection of the rights of indigenous peoples while preserving the cultural identity and traditions that remain central to the Baduy community.

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