Indonesian Comparative Law Review
Indonesian Comparative Law Review (ICLR) (ISSN: 2655-2353, E-ISSN:2655-6545 is a periodical scientific-journal published by the Faculty of Law, Universitas Muhammadiyah Yogyakarta in collaboration with the Indonesian Association of Comparative Laws. The journal will be published twice a year in December and June. ICLR’s vision is to be a leading scientific journal in comparative law. ICLR has a unique approach in creating innovative discourse on harmonization among legal systems. ICLR will receive many articles from legal scholars from reputable universities worldwide.
Articles
96 Documents
<![CDATA[Protecting the Rights of Mental Health Patients: Comparative Study between Indonesia and Taiwan ]]>
<![CDATA[Wahyu, Muhammad Arizka]]>;
<![CDATA[Elven, Tareq Muhammad Aziz]]>
<![CDATA[ Indonesian Comparative Law Review Vol 2, No 2: June 2020 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.2220
<![CDATA[The phenomenon of human shackling upon people with mental health disorder are still found in Indonesia. The latest data from Human Rights Watch shows that more than 18,800 people now live in shackled in Indonesia. The paper aims to elaborate the existing regulation on mental health patients in Indonesia and analyze necessary steps to be taken by the Indonesian Government to provide better protection for mental health patients. This normative legal research employs comparative approach. Comparison was made with Taiwan. The study shows that human shackling still persists in Indonesia due to some reasons including the inadequacy of regulations, the lack of mental health hospitals, the shortage of psychiatrists and other mental health providers, as well as the lack of educations.]]>
<![CDATA[The Prevention upon the Congenital Anomalies Effect: A Comparative Study between Indonesia, the United Kingdom and the United States ]]>
<![CDATA[Umar, Wahyudi]]>;
<![CDATA[Salim, Andi Agus]]>;
<![CDATA[Cahya Kusuma Putri, Desy Nur]]>
<![CDATA[ Indonesian Comparative Law Review Vol 2, No 1: December 2019 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.2115
<![CDATA[Birth defects or congenital anomalies affect an estimated 1 in 33 infants, resulting in 3.2 million children with disabilities relating to birth defects every year. In addition, 11.3% of 2.68 million infant mortality caused by birth defects. South-East Asia region has the second highest prevalence of birth defects in the world, 9% of under-five deaths and 12% of newborn deaths in South-East Asia Region were due to congenital anomalies in 2015. In response to this, some countries have established law to prevent children from congenital anomalies. In fact, genetic is not the single factor causing the congenital anomalies. In many cases they were also the result of wrongful conduct of persons. The United Kingdom, for example, had passed a law to deal with the issue of congenital anomalies since 1976. Considering the above-mentioned statistic of birth defects in South-East Asia region, Indonesia have to take an action to prevent or reduce their occurrence. The paper aims to explore the possible ways to prevent the congenital anomalies in Indonesia. It is found that the prevention of congenital anomalies can be made through legal instruments. Unfortunately, the existing law, including the Child Protection Act, do not cover such an issue. With regard to this, the reform upon the law relating to it is urgent. For this purpose, learning from other countries such as the United States and the United Kingdom seems to be necessary.]]>
<![CDATA[Unitary, Federalized, or Decentralized?: The Case Study of Daerah Istimewa Yogyakarta as the Special Autonomous Regions in Indonesia ]]>
<![CDATA[Sung, Ming-Hsi]]>;
<![CDATA[Hakim, Hary Abdul]]>
<![CDATA[ Indonesian Comparative Law Review Vol 1, No 2: June 2019 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.1210
<![CDATA[The professed constitutional unitary state claim has been highly debated. Some argue that Indonesia shall be a unitary state in name, pursuant to Article 1 Para. III of the Indonesian Constitution, but Constitutional reforms after 1998 when the autocratic President Gen. Soeharto stepped down granted broad authority to local government, leading Indonesia to a quasi-federation situation in practice. On the other hand, some stick to the aforementioned Article, insisting that decentralization embedded in the Constitution Article 18 Para. II is by no means making Indonesia federal. This article takes the Act No. 13 of 2012 on Special Region of Yogyakarta (the Daerah Istimewa Yogyakarta) granting autonomy to Daerah Istimewa Yogyakarta as a case study to argue for the latter, asserting that the case merely exemplifies the decentralization characteristic embedded in the Constitution. This paper first examines the political features of federalism through a historical legal perspective, showing that the current state system in Indonesia is decentralized but not federalized. This paper concludes  that the recognition of Daerah Istimewa Yogyakarta as an autonomous region is simply a practice of constitutional decentralization. This paper also higlights that with recent political development, echoing that the decentralization theory is not a product of legal interpretation, but a constitutional and political reality.]]>
<![CDATA[Insolvency Proceedings: ASEAN and EU Comparison on the Rules of Foreign Court Jurisdiction ]]>
<![CDATA[Anggriawan, Rizaldy]]>
<![CDATA[ Indonesian Comparative Law Review Vol 3, No 1: December 2020 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.v3i1.11621
<![CDATA[Due to a lack of uniformity or harmonization of laws and regulations, cross-border insolvency has remained an issue in the ASEAN region. ASEAN economic openness with the implementation of the ASEAN Free Trade Area (AFTA) and ASEAN Economic Community (AEC) may create issues at some points as investors compete to dominate the ASEAN while assets are located not only on their own territory but also in other ASEAN member countries. On some occasions, they can fail to meet their debt payment obligations when performing international business transactions. As a result of the bankruptcy case, a legal arrangement may exist between the country in which the business actor is declared bankrupt and the country in which the bankrupt debtor's assets are located. This interaction between two or more countries involves a clash of jurisdictions. In order to counter such an issue, ASEAN may learn from what the EU has done over these decades. The study aims to compare the regulatory issue of foreign court jurisdiction in settling the insolvency cases both in ASEAN and EU. The paper is normative-qualitative legal research. It used a comparative, statute, and conceptual approach. It is found that in terms of cross-border insolvency, the European Union is far ahead of ASEAN, given that at least two major regulations in place, namely EC Regulation 1346/2000 and EU Regulation 2015/848, while ASEAN has almost nothing to offer at this time. The experience of the EU to formulate and implement a settled regulation on foreign court jurisdiction in settling the insolvency cases among EU member countries is one of the valuable lessons that ASEAN may take from the EU. ]]>
<![CDATA[“Virtual†v.s. “Realityâ€â€” On Taxing E-Sports Virtual Goods Transaction in Indonesia ]]>
<![CDATA[Sung, Ming-Hsi]]>;
<![CDATA[Umar, Wahyudi]]>
<![CDATA[ Indonesian Comparative Law Review Vol 3, No 1: December 2020 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.v3i1.11159
<![CDATA[In technological advances, the emergence of various online games that have generated billion dollars has attracted the attention of the government currently. The most of its revenue comes from the sale of virtual item (item in-game) which have almost zero marginal cost of production. In 2019, Indonesia contributed 624 million dollars, equivalent to 8.7 trillion rupiah for mobile gaming.According to Mirza Adityaswara, Senior Deputy Governor of the Bank of Indonesia (BI), this phenomenon will bring the money out of Indonesia, then it makes Indonesia’s balance of trade (BOT) deficit.Indonesia’s BOT has been facing shortfalls in recent years. In 2019, the BOT decreased by 61.7%, the deficit reached -US$1,933,90 million. This paper argue that Indonesia should take the case aquo as new tax base in order to resolve her deficit. An online game has its own currency which obtained through purchases using real money. This lead to trading real money for virtual objects, ‘land’ and ‘characters’ in-game. Uniquely, item in-game transaction is not only done by the developers to players but also players to players. Therefore, the phenomenon brings with it familiar legal issue such as sales tax. This paper intends to introduce the situation the current situation of case a quo in Indonesia and asserting the urgency and challenges of case aquo taxation in Indonesia.]]>
<![CDATA[Consolidating Indonesia’s Fragile Elections Through E-Voting: Lessons Learned from India and the Philippines ]]>
<![CDATA[Elven, Tareq Muhammad Aziz]]>;
<![CDATA[Al-Muqorrobin, Shalahuddin Ahmad]]>
<![CDATA[ Indonesian Comparative Law Review Vol 3, No 1: December 2020 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.v3i1.11298
<![CDATA[This research argues that implementing the electronic voting (e-voting) system in Indonesia is urged following the nation's first-ever 2019 simultaneous elections, which cost a deadly price of 527 election official lives of reported extreme fatigue during and after the event. Billed as "the world's most complex election", it has reached a consensus that the current manual election system, in which five different paper-based elections are voted at a time, has to be changed. Not to mention that the long-time gap between the voting day and the result announcement may create an opportunity for election fraud. This is evidenced by loads of electoral dispute lawsuits from the previous election brought to the Constitutional Court of Indonesia accused the others of cheating. This research stresses that despite the controversies of whether Indonesia, an archipelagic country with more than 17 thousand islands and 267 million people, is ready for e-voting. Whether the application of technology is an appropriate response to the election problems? E-voting is desired as a long-term solution and intends to solve many issues such as speeding the counting of ballots, reducing the cost of elections, providing accessibility for disabled voters, and increasing overall voter turnout.]]>
<![CDATA[Adjudicating Separation of Powers: Lessons From The European Court of Human Rights for A Future Asian Human Rights Mechanism? ]]>
<![CDATA[Lee, Seokmin]]>
<![CDATA[ Indonesian Comparative Law Review Vol 3, No 2: June 2021 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.v3i2.12037
<![CDATA[Efforts to build a regional human rights mechanism in Asia are being renewed. Separation of powers adjudication will be inevitable if the right of access to court is included in the new mechanism. This is significant since the potential for separation of powers cases involving human rights issues in Asia is high. An Asian human rights mechanism must take this possibility into account, since adjudicating on such issues may severely impact its stability and long-term viability. A mechanism based on existing regional systems such as the ECHR can seek to minimize these risks via institutional solutions. On the other hand, an Asian mechanism can side-step these issues in the short term by focusing on a narrow set of rights, which minimize the potential for raising issues of separation of powers. In the long term, however, a complete charter of fundamental rights cannot ignore separation of powers issues being linked with human rights. The aim of this paper is to highlight both the inevitability and risks of adjudicating cases involving a nexus between separation of powers and human rights by a regional human rights court.]]>
<![CDATA[The Price of Animal’s Soul: Late-Stage Capitalism, Animal Welfare and the Law ]]>
<![CDATA[Yogar, Hanna Nur Afifah]]>
<![CDATA[ Indonesian Comparative Law Review Vol 3, No 2: June 2021 ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.v3i2.11939
<![CDATA[The current epoch of capitalism creates more distinct issues, and one of its conflicts is the class struggle of animal workers. This paper will begin by inquiring how much is the price of an animal's soul?—and further, it will situate the Indonesian laws in the effort to accommodate the animal's protection and their welfare. The features of late-stage capitalism indicate the conflict of class struggle for animal workers. The assessment is more than an economic perspective, but human and non-human animal intra-action nexus, legal standpoint, and socio-cultural point of views. This analysis will refer to late-stage capitalism theory, Indonesian laws and other related regulations concerning animal protection, and comparative cases of animal welfare cases in Indonesia and Thailand. This paper is expected to provide an overview of the role of law in providing an understanding of animals as sentient beings rather than property. ]]>
<![CDATA[Establishment of Omnibus Law in Solving Investment Issues in Indonesia ]]>
<![CDATA[Putro, Tri Anggoro]]>
<![CDATA[ Indonesian Comparative Law Review Vol 3, No 2 (2021) ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.v3i2.12738
<![CDATA[This study aimed to better understand the concept of Omnibus Law in the legislation and evaluate its use in responding to investment needs in Indonesia. The method in this research was normative legal research with secondary data through data analysis. This study showed that the Omnibus Law was not an appropriate approach to the formation of legislation in responding to investment needs in Indonesia. Based on the existing data, the investment climate in Indonesia is quite high and running well and even in a better situation when compared to other Asian countries. The Omnibus Law on Job Creation will raise a new problem instead, such as the absence of legal certainty for investment and the priority of the investment types. From the aspect of industrial relations, the Omnibus Law will result in disharmony in industrial relations between employers and workers, and it even potentially reduces guarantees for workers' human rights. Ironically, the fulfillment of workers' human rights has become an important benchmark for investors in developed countries to invest in developing countries, such as Indonesia. Therefore, the Indonesian government should strengthen the Corruption Eradication Commission and ensure a better investment climate by guaranteeing human rights to all workers and by reducing the ratio between investments (ICOR).]]>
<![CDATA[The Doctrine of Informed Consent and Duty of Disclosure: A Comparative Essay between the US, UK, Australia and Malaysia with Indonesia ]]>
<![CDATA[Badli Esham, Alyssa Dalila]]>
<![CDATA[ Indonesian Comparative Law Review Vol 2, No 1 (2019) ]]>
Publisher : <![CDATA[Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/iclr.2113
<![CDATA[The study aims to compare and contrast the position of four countries (The US, UK, Australia, and Malaysia) regarding informed consent, particularly on the subject of disclosure of information with Indonesia. Other than that, the legal issues to be studied were the implications brought upon the healthcare and judicial system in the respective countries as well as the advantages and disadvantages of each test propounded. It was found that previously the welfare of the patient in regards to their right to receive information (especially risks) regarding their medical treatment was only up to the discretion of the medical practitioner and other members of the medical profession, which eliminates liability against a negligent doctor if it was found that other members of the medical community would have done the same as him. It was not until the case of Rogers v Whitaker that the spectrum widened and allowed the courts to determine that whatever that should be disclosed to the patient must be something that the patient attaches significant risk to, this is then named the “Prudent Patient Test”, used by most countries in this study. The study finds that as an implication, most countries have departed from the previous paternalistic approach by doctors and as an advantage, encouraged individualism and the reduction of the patients as passive recipients in their own health care. Since most of the comparative countries are similar in application, it was found that the medical law envisioned and enforced in the respective countries was quite different compared to the civil legal system in Indonesia. Other than that, as a country that is highly ingrained with Islamic values of life, the perspective of human rights and individualism in Indonesia is distinct with most of the other countries studied.]]>
