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INDONESIA
KERTHA WICAKSANA
Published by Universitas Warmadewa
ISSN : 08536422     EISSN : 26213737     DOI : https://doi.org/10.22225
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Articles 10 Documents
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Search results for , issue "vol 20 no 2 (2026)" : 10 Documents clear
Melawan Peninjauan Kembali (PK) Dengan Mengajukan Peninjauan Kembali (PK): Analisis Yuridis Terhadap Kepastian Hukum Dan Keadilan I Gusti Ayu Stefani Ratna Maharani
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.100-105

Abstract

This study aims to analyze in depth the practice of multiple judicial review (PK) applications. The method applied in this study is normative legal research, which utilizes a statute approach and a conceptual approach. The results of the study indicate developments in the Indonesian criminal justice system, particularly following Constitutional Court (MK) Decision Number 34/PUU-XI/2013. This decision declared Article 268 paragraph (3) of the Criminal Procedure Code unconstitutional. Based on progressive legal arguments, the Constitutional Court emphasized that criminal law must prioritize justice over legal certainty. Therefore, the limitation on the submission of PK by convicts is seen as a barrier to citizens' constitutional rights. The Constitutional Court decision seeks to open up space for convicts to re-use the legal remedy of PK (re-PK). In principle, as long as novum (new evidence) is found, the opportunity to submit a criminal PK must remain available. Limiting PK to only one time is considered problematic if in the future novum arises that has the potential to change legal considerations and result in a different decision from the previous panel of judges.
Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh di Berbagai Tingkat Peradilan Valencia Puspa Novandra Ali; T. Tamsil
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.113-125

Abstract

This study examines the divergent interpretations and applications of the additional penalty of restitution (uang pengganti) in corruption cases through a comparative analysis of the Angelina Sondakh decisions at the district court, appellate court, cassation, and judicial review levels. A dualism of interpretation emerges between viewing restitution as compensation for state financial losses and as a mechanism for confiscating illicit gains. The judex facti rejected imposing restitution on the ground that no state loss occurred in bribery and gratuity cases, while the judex juris at the cassation level construed restitution as an asset recovery instrument targeting unlawfully obtained benefits. These conflicting conceptual orientations produced significant sentencing disparities and revealed inconsistencies within the normative framework of the Anti-Corruption Law and Supreme Court Regulation No. 5/2014. The study finds that the lack of a clear normative purpose for restitution directly contributes to inconsistent judicial reasoning, thereby undermining legal certainty and the effectiveness of asset recovery. A clearer normative formulation—affirming restitution as an instrument for confiscating the proceeds of corruption—is required to achieve sentencing consistency and strengthen anti-corruption enforcement.
Transformasi Sistem Pemilu Pasca Putusan MK No.135/PUU-XXII/2024: Implikasi Pilkada terhadap Coattail Effect dan Demokrasi I Made Sudharma; Ida Bagus Sudarma Putra; I Made Sugita; Ida Ayu Sri Kusuma Wardhani
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.162-172

Abstract

The transformation of Indonesia's electoral system in the post-reformation era has experienced significant dynamics with the emergence of Constitutional Court Decision Number 135/PUU-XXII/2024, which separates the implementation of national and regional elections with a time gap of 2 to 2.5 years. This decision fundamentally changes the paradigm of simultaneous five-ballot elections implemented in the 2019 and 2024 Elections, which raised substantial technical and procedural issues related to the coattail effect phenomenon and local democracy quality. This research analyzes two principal problems: first, the constitutional foundation for separating national and regional elections within Indonesia's electoral system framework; second, the implications of electoral separation on the coattail effect in regional head elections and local democracy strengthening. The research employs a normative legal approach utilizing statute and conceptual approaches. The findings indicate that the Constitutional Court Decision possesses a robust constitutional foundation grounded in popular sovereignty principles, fulfillment of direct, general, free, secret, honest, and fair election principles (Luber Jurdil), and democratic interpretation in regional head elections, aiming to realize substantive and procedural democracy. Constitutional Court Decision Number 135/PUU-XXII/2024 provides transformative implications for strengthening local democracy in Indonesia. This separation transforms the coattail effect into a diffused, performance-based coattail effect emphasizing governmental accountability over popularity. It creates space for autonomous local political dynamics, enhancing democratic quality through increased voter rationality, strengthened vertical accountability, improved checks and balances, and higher-quality political contestation aligned with deliberative democracy principles.
Tradisi atau Perilaku Kriminal: Fenomena Gowok dan Undang-Undang Nomor 44 Tahun 2008 tentang Pornografi Hanugrah Titi Habsari; Dony Setiawan Putra; Ladito Risang Bagaskoro; Fine Jenniary
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.86-99

Abstract

The development of information technology and social change have led to various practices that spark legal and moral debates, including the phenomenon of Gowok, transactional relationships between young women and elderly men. This research aims to analyze two main questions: (1) How does the Pornography Law regulate Gowok as moral violations? (2) How can Gowok be analyzed from a victimology perspective? The study employs a normative juridical method with legislative, conceptual, and case approaches. Data are collected through literature review of legislation, legal doctrine, and academic studies on the Gowok phenomenon. Findings show that Law Number 44 Of 2008 On Pornography strictly prohibits acts containing sexual content, displaying or exploiting the body, and media that stimulate sexual arousal. Gowok practice potentially fulfills elements of moral violation, depending on evidence of sexual exploitation or profit. From a victimological standpoint, women in these practices are categorized as structural victims due to economic pressures, patriarchal culture, and weak legal protection. This classification also reflects the intersection between socio-economic vulnerability and the normalization of gendered power asymmetries, which places women at heightened risk of coercive dependency. The research concludes that law enforcement should be sensitive to victims and based on restorative justice principles. Recommendations emphasize more adaptive regulations for contemporary social phenomena, public education, and economic empowerment for women to prevent similar practices.
Penguatan Kebijakan Pemerintah Provinsi Bali Terkait Pembatasan Timbulan Sampah Plastik Sekali Pakai Dalam Perspektif Pembaharuan Hukum Pidana I Gusti Agung Dian Hendrawan; I Gede Widhiana Suarda; Y. A. Triana Ohoiwutun
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.148-161

Abstract

This study aims to analyze the nature of policy regulations on the restriction of single-use plastic waste and efforts to strengthen them in the future through a paradigm of criminal law reform by reconceptualizing criminal punishment. This study employs a normative legal method using a legislative approach, a case-based approach, and a conceptual approach. The legal materials utilized consist of primary, secondary, and tertiary sources, analyzed qualitatively using descriptive-analytical techniques. The research findings indicate that Bali Governor Regulation No. 97 of 2018 on the Restriction of Single-Use Plastic Waste Generation is a valid, important, and progressive legal instrument in providing legal protection for the public, ensuring the fulfillment of the fundamental right to a good and healthy environment, and supporting sustainable environmental conservation in Bali; however, substantively, there remain challenges regarding the regulation of sanctions, which are currently insufficiently stringent—limited to administrative sanctions. To strengthen this policy in the future, it must be supported by the imposition of criminal sanctions; indeed, based on several existing laws and regulations, there is significant room to incorporate criminal provisions into the policy restricting single-use plastic waste generation. The coercive nature and greater severity of criminal sanctions compared to other areas of law can clearly serve as a deterrent to offenders and increase compliance with existing regulations.
Tanggung Jawab Hukum Prinsipal atas Discontinue Product dalam Distribusi Kosmetik Indonesia Revino Mumek; Andyna S. Achmad
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.126-134

Abstract

Discontinue Product policies are commonly implemented in the cosmetics and personal care industry as part of business strategies to adjust product portfolios to market developments and consumer preferences. However, product discontinuation frequently causes economic losses within the distribution chain, including overstock, aging stock, dead stock, declining product value, storage costs, and disruptions to business operations. Legal issues arise because Indonesian law does not specifically regulate the allocation of risks resulting from Discontinue Product policies, creating legal uncertainty regarding the parties responsible for such losses. This study aims to analyze the legal framework governing risk allocation arising from Discontinue Product policies in the cosmetics and personal care distribution chain in Indonesia and to examine the legal liability of principals for the resulting losses. This research employs a normative legal research method using statutory, conceptual, and contractual approaches. The findings reveal a normative gap in both statutory regulations and distribution agreements concerning the allocation of risks arising from Discontinue Product policies. The study further finds that a Discontinue Product policy cannot be classified as force majeure under Articles 1244 and 1245 of the Indonesian Civil Code, nor does it automatically constitute a breach of contract, but rather represents a contractually legitimate business decision that generates unresolved risk-allocation issues. Furthermore, principals bear legal responsibility because they control product discontinuation decisions, possess the greatest ability to foresee potential risks, and maintain an ongoing connection to the existence and economic value of products within the distribution network. Based on these findings, this study proposes the Proportional Responsibility Model, which allocates risks proportionally according to each party’s degree of control, ability to foresee risks, and contribution to the occurrence of losses in order to promote legal certainty, fairness, and contractual balance within the cosmetics and personal care distribution chain in Indonesia.
Urgensi Legislasi RUU Masyarakat Hukum Adat dalam Proteksi Hak Ulayat Habib Rizieq Ramadhan; Yanuar Nurfaiz; Vincent Nouval Theo; Abd Aziz Tambunan
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.79-85

Abstract

Indigenous peoples' territorial rights in Indonesia remain seriously threatened despite constitutional guarantees under Article 18B(2) and Article 28I(3) of the 1945 Constitution and Constitutional Court Decision No. 35/PUU-X/2012. The Aliansi Masyarakat Adat Nusantara recorded 135 cases of territorial dispossession affecting 3.8 million hectares across 109 communities in 2025, driven by mining, plantation, and national strategic project concessions. Prior studies have not systematically constructed the normative architecture needed within the Draft Law on Indigenous Peoples to protect customary territorial rights from corporate concession expansion. This study aims to analyze the legislative urgency of the Draft Law on Indigenous Peoples in providing normative protection for customary rights, while formulating the protective mechanisms that should be embedded within it. This study applies normative legal research through conceptual and statutory approaches, grounded in legal pluralism and ecological justice theories. The findings identify three structural normative vacuums that produce asymmetric legal recognition between indigenous communities and corporations. Analysis of the draft reveals four critical weaknesses: the absence of FPIC integration into the national licensing system, the dominance of a conditional recognition paradigm, the lack of a concession moratorium clause, and the absence of a restitution mechanism. This study proposes four normative pillars as the minimum architecture for the Draft Law on Indigenous Peoples to function as an effective legal shield for indigenous communities against corporate concession expansion.
Perlindungan Viktimologis Hak Privasi Istri dalam Penyitaan Bukti Elektronik Delik Domestik Reski Anwar; Rifa Winata; Fakhry Achmad Alfahrezy
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.135-147

Abstract

The massive transformation of digital technology has shifted the paradigm of criminal evidence gathering in domestic offenses toward electronic platforms, where a wife's personal device often contains crucial evidence alongside highly sensitive private data. However, the enactment of Law No. 20 of 2025 (the New Criminal Procedure Code) triggers critical legal vulnerabilities, notably the absolute extraction of digital device memory without explicit filtering protocols, leading to excessive invasion of privacy and secondary victimization while undermining the Islamic ethico-legal principle of hifzh al-’ird (safeguarding honor). This study aims to analyze the digital evidence seizure mechanism within domestic disputes under Law No. 20 of 2025 from a victimological perspective and formulate an ideal legal framework to preserve a wife's privacy. Utilizing a normative-legal research method with statutory and conceptual approaches, this study integrates Law No. 20 of 2025, the New ITE Law, and the Domestic Violence Elimination Law. The main findings reveal significant regulatory gaps: the absence of operational thresholds for "relevant data," a lack of structural data filtering at the extraction phase, and a complete vacuum of effective remedy channels for imaterial privacy violations. Consequently, this study prescribes a victim-centered digital seizure protocol based on five operational pillars: specific judicial authorization, the least intrusive means approach, gender-sensitive multidisciplinary assistance, mandatory digital destruction of non-relevant data, and multi-sector independent oversight to ensure data sovereignty and human dignity.
Perbandingan Model Integrasi Regional Organisasi Uni Eropa, Asean dan African Union Dalam Perspektif Hukum Organisasi Internasional Muhammad Rafi; Miko Aditiya Suharto
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.106-112

Abstract

This article examines and compares the models of regional integration adopted by the European Union (EU), the Association of Southeast Asian Nations (ASEAN), and the African Union (AU) from the perspective of the law of international organizations. The significance of this study lies in the increasingly prominent role of regional international organizations in global governance, as well as the limited number of comparative studies that simultaneously analyze these three organizations within a single systematic analytical framework. This legal scholarly article addresses two principal issues: first, a comparative analysis of the integration models of the three organizations from philosophical, legal, and institutional perspectives; and second, the implications of these differences for the development of the law of international organizations. The study employs a normative juridical method with statutory and comparative approaches, drawing upon the constituent instruments of the three organizations and relevant jurisprudence. The findings reveal that the European Union adopts a supranational model characterized by the supremacy of law, direct effect, and quasi-federal institutional arrangements. ASEAN, by contrast, adheres to an intergovernmental model founded upon the principles of non-interference and full consensus. Meanwhile, the African Union occupies a hybrid position by innovatively incorporating the principle of responsibility through the right of humanitarian intervention as enshrined in Article 4(h) of the Constitutive Act. This article concludes that there is no universally applicable model of regional sovereignty integration. Instead, the diversity of integration models reflects normative adaptations to the distinct historical, cultural, and geopolitical contexts of each region, thereby enriching the development of the law of international organizations as a whole.
Aspek Hukum Bisnis Kepariwisataan Berbasis Kearifan Lokal: Analisis Implementasi UU No. 18/2025 Di Provinsi Bali I Wayan Suarjana
Kertha Wicaksana Vol 20 No 2 (2026)
Publisher : Fakultas Hukum, Universitas Warmadewa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/kw.20.2.2026.173-180

Abstract

This study examines the juridical dimensions of tourism business activities grounded in local wisdom values within the framework of Law Number 18 of 2025 as the third amendment to Law Number 10 of 2009 on Tourism, with particular emphasis on Bali Province. The new regulation introduces fundamental transformation in tourism industry governance through the integration of local wisdom values, sustainability principles, and community participation enhancement. The methodology employed is normative juridical with statutory and conceptual approaches to analyze the legal construction of locality-based tourism business. Research findings indicate that the regulation provides solid juridical basis for advancing the tourism sector based on local wisdom through four main pillars: (1) legal legitimacy for traditional villages as legal entities in tourism governance; (2) protection construction for local communities' economic rights; (3) regulation of tourism business activities sensitive to local socio-cultural contexts; and (4) legal instruments for proportional economic benefit distribution. In the context of Bali Province, implementation of this regulation faces harmonization challenges with regional regulations and awig-awig as customary law, alongside the urgency to develop tourism business models accommodating balance between economic expansion and cultural preservation. This study proposes the need for regulation synchronization across governmental levels, institutional strengthening of traditional villages, and formulation of sustainable tourism business practice standards adaptive to Balinese locality contexts.

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