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WAHID FATHONI
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INDONESIA
Indonesian Comparative Law Review
Published by Universitas Muhammadiyah Yogyakarta
ISSN : 26552353     EISSN : 26556545     DOI : 10.18196/iclr
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
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.
Arjuna Subject : Umum - Umum
Articles 96 Documents
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Integrating Traditional Medicine into the Healthcare System in Ethiopia: Promoting Research and Avoiding Misappropriation Degu, Temesgen Abebe
Indonesian Comparative Law Review Vol 6, No 2 (2024)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i2.21454

Abstract

Traditional medicine is a form of medicine that has been widely used in Ethiopia for thousands of years.  However, it is still practiced in the absence of formal healthcare. The current approach to the protection of traditional medicinal resources in Ethiopia is based on multiple fragmented legislations and neglects one of these problems. The main objective of this paper is to discuss the need for integrating traditional medicine into national healthcare system and protecting of traditional medicinal resources in Euthopia. This normative legal research employs statutory approach. It is found that Ethiopia has put in place a legal framework for the protection of its traditional medicinal resources, but the role of traditional medicine in healthcare is not clearly defined. Many medicinal plants are, consequently, at risk of extinction and biopiracy.  Ay policy option that seeks to protect traditional medicinal resources must have in mind these three problems together, i.e loss of traditional knowledge, loss of medicinal plants, and potential misappropriation. Integrating traditional medicine into the modern health care system requires careful consideration of conservation, protection, and development of traditional practices.
Inheritance Rights of Extramarital-Children after the Constitutional Court Decision of 2010 Lestari, Putri Wartina; Judiasih, Sonny Dewi; Nugroho, Bambang Daru
Indonesian Comparative Law Review Vol 6, No 1 (2023)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i1.19655

Abstract

Extramarital-children refer to children who are born outside the marriage. The position extramarital-children are legally vulnerable and therefore needs attention. The Constitutional Court Decision No. 46/PUU- VIII/2010 recognizes the legal status of extramarital children against their biological fathers as long as their genetic relationship can be proven by way of DNA testing and supported with other evidence. This study aims to examine the inheritance right of the extramarital-children, especially after the issuance of the mentioned Constitutional Court Decision. This normative legal research employs statutory, case and comparative approaches.  Although the focus of this study is more on the legal development in Indonesia, however, this paper also provides a comparative analysis with some other countries, especially with regard to the utilization of the DNA Testing for legal purposes. The results show that the Constitutional Court Decision No. 46/PUU-VII/2020 does not address the inheritance right of extramarital-children and therefore they cannot inherit each other from their biological fathers. In regard to inheritance, this issue will be referred to the existing law of inheritance.
Human Dignity in the Criminal Process: A Lesson Learned from Torture Case in Germany Prahassacitta, Vidya
Indonesian Comparative Law Review Vol 6, No 1 (2023)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i1.20297

Abstract

The research aims to analyze the prevising human dignity in the criminal process, especially in cases regarding torture for good purposes.  In the interrogation process, the preparator does not give any information about the hostage; at the same time, the hostage’s condition becomes critical.  Does harm given to the preparator without causing injuries within a short time to save a hostage be accepted and not violate human dignity? The researcher conducts document research and applies a comparative law approach to answer the question. The study compares Indonesian and German legal systems to show the different perspectives on the issue. The research shows that historical and cultural dimensions shape the concept of human dignity in each legal system, and it has a consequence with the idea of proportionally deterring torture for good purpose action. Under Germany's legal system, this action cannot be accepted because human dignity is the supreme value of the Constitution. It is a bit different from the Indonesian legal system, where the concept of human dignity shall maintain a balance between individual and community rights; the action might be accepted with strict requirements.
Environmental Justice in Intra Generations: An Overview of Aristotle's Distributive Justice to Coal Mining Endyka, Yovi Cajapa; Muhdar, Muhamad; Sabaruddin, Abdul Kadir
Indonesian Comparative Law Review Vol 3, No 1 (2020)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v3i1.11234

Abstract

Indonesia is a country with abundant natural resources, ranging from sand. Tin, copper, coal, iron ore to gold. Therefore, the State should provide environmental justice to create reserves with wise and sustainable management of natural resources. This study uses a doctrinal method in order to answer the problem under study. This study will examine how Aristotle's distributive justice can sharpen the concept of justice for coal mining management. This study will focus on environmental justice in intra-generational terms in terms of Aristotle's distributive justice to coal mining. Protection of access (conservation of access) reflects the allocation of rights and access to natural resources balanced between different generations and fellow members of the current generation. Thus, access to protection provides fair and non-discriminatory rights for every citizen of the current generation to use environmental resources. However, in using these resources, each member of the current generation has an obligation (equitable duties) to ensure that his actions will not reduce future generations' access to these resources. The state through mining or environmental policies has not provided justice for the community, where the community accepts more risks such as social injustice, environmental and health harm from coal mining activities than receiving the benefits.
Punitive Damages in Unfair Dismissal Cases: Lessons from Malaysia and New Zealand Abdul Shukor, Siti Fazilah; Abd Razak, Siti Suraya
Indonesian Comparative Law Review Vol 6, No 1 (2023)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i1.19623

Abstract

Employers tend to dismiss employees without proper grounds, in bad faith or fail to follow procedure prescribed under law. An employee that has been dismissed unfairly can bring an action against the employer for unfair dismissal. Damage is the most sought remedy of the employee for unfair dismissal claims. Punitive damage is a form of monetary remedy awarded by the court in addition to the actual damage to the aggrieved party. Punitive damage is awarded as a punishment to the wrongdoer. Punitive damage has become the remedy in both Malaysia and New Zealand. The objective of this study is to analyse the punitive damage awarded by the Malaysian Industrial Court and New Zealand Court in unfair dismissal cases. This study employed a qualitative method with reference to journal articles, relevant statutory laws and case laws on unfair dismissal cases with punitive damage as an award. The findings show that punitive damages in unfair dismissal cases have been awarded by the Malaysian industrial court and New Zealand court against employers on the grounds that the dismissals were made under bad faith. This study is significant as it expands the application of punitive damage in unfair dismissal cases and improve the system’s legal certainty.
Model of Local Wisdom Legal Source and State Law in Aceh Government Zulfan, Zulfan
Indonesian Comparative Law Review Vol 1, No 1 (2018)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.1106

Abstract

The initial process of the peace agreement between Indonesian Government and Aceh Free Movement in 2005 was through sociological, philosophical, juridical and political considerations. The Free Aceh Movement attempted to reconstruct the source of local wisdom law in Law Number 11 the Year 2006 regarding Aceh Government. It means that the 1945 Constitution of the Republic of Indonesia recognizes and respects Aceh's special government units. Essentially, the arrangement of placing the model of the source of the law of local wisdom exists to be enforced as a unity of law and facts cannot be separated. Consequently, law and implementation re-quire unity of will. Why does the Free Aceh Movement love the arrange ments and practices of the old constitution and tradition? Because the source of Islamic Shariah, the foundation of the Aceh community life is articulated in the modern perspective of democratic and responsible state government. Basic aspirations of the specificity of Acehnese religious community life not only in the field of custom, cultural, social and political, but provide legal certainty in all affairs. The main target responds to the failure of state challenges to uphold the law, democracy, freedom of human rights and justice. The study was limited to how their wishes to change the concept of legal arrangements and practices worked in the real world, linking the legal unity with the facts of society to the two sets of legal documents governing Aceh. The study used normative approach, legal history, and comparative law. Juridically, there are two main goals to be achieved from the implementation of the arrangements and practices in this study. First, it places the differences and equations of both models of the source of local wisdom law and the design of state law. Secondly, it turns out that the concept of Acehnese legal culture highly values pluralism.
Comparative Legal Analysis of Beauty Clinic Services between Indonesian Law and Islamic Law Sari, Siska Diana
Indonesian Comparative Law Review Vol 6, No 2 (2024)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i2.21856

Abstract

In line with the evolving needs of consumers who strive to improve their facial and physical appearances, beauty clinics frequently introduce new services supported with new technological devices. Some forms of esthetical treatment introduced in the market have risen controversy in terms of their legality. This article aims at  exploring the legality of esthetic treatment provided by beauty clinics from  the perspective of Indonesian law and Islamic law. This normative legal research employs comparative approach. Comparison is made between Indonesian law and Islamic Law. It is found that Islamic law has different approach in addressing the issue of the legality of esthetic treatment provided by beauty clinics as compared to Indonesian law.  While the Indonesian law tends to liberate various kinds of esthetic treatment, Islamic law gives a restriction. By virtue of the principle of freedom of contract as intended in Article 1338 of the Indonesian Civil Code, any esthetic treatment can be carried out when it is made based on a valid contract between the contracting parties. On the other side, Islamic Law prohibits particular esthetic treatment especially when it falls under the category of “changing what Allah has created.”
Lease Stability in Agricultural Land: Legal Instruments in Poland and Selected European Countries
Indonesian Comparative Law Review Vol 6, No 1 (2023)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i1.19896

Abstract

This manuscript explores the legal instruments related to the stability of agricultural land lease in Poland and selected European countries. The study begins with a brief history and evaluation of land leasing in regions including Germany, France, Poland, and Switzerland. Despite its prevalence, the European Union lacks overarching regulations on this matter, leaving it to individual Member States. The research emphasizes lease duration, extension, and continuity, especially during events like the transfer of lease rights or the death of involved parties. A comparative analysis of legislation from countries like Poland, Germany, Italy, and France is presented. The paper also touches upon EU funds related to land leasing. In conclusion, various legal solutions across Europe are highlighted, underscoring the importance of stability for farm development and alignment with the Common Agricultural Policy.
Strengthening ADR System in Indonesia: Learning from ADR Practices in Hungary Saputra, Beny
Indonesian Comparative Law Review Vol 6, No 2 (2024)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i2.21984

Abstract

Integrating Alternative Dispute Resolution (ADR) into legal systems is essential for improving access to justice, decreasing litigation expenses, and promoting enforced outcomes. This article examines the ADR practices in Hungary, a country that has successfully integrated ADR into its legal system, to gain significant insights for Indonesia, as both countries share the same sociocultural practices for communal dispute resolution. This normative legal research examines Hungary's extensive legal framework, the roles of institutional support structures, and the enforcement of ADR awards. The study employs comparative analysis that systematically evaluates pertinent legal documents, institutional reports, and scholarly literature from Hungary and Indonesia. The study found fundamental factors that contribute to the effectiveness of alternative dispute resolution (ADR) in Hungary including the existence of a clearly established legislative framework, sufficient institutional infrastructure, and effective regulation to enforce ADR decisions. Indonesia can adopt these techniques to improve its Alternative Dispute Resolution (ADR) system, resulting in more streamlined, cost-efficient, and fair processes for resolving disputes and to establish a more unified and efficient ADR system.
The Fall of Afghanistan: Can the Refugee Protection Regime Handle the New Refugee Wave? Qazi Zada, Sebghatullah; Nasrullah, Nasrullah; Irrynta, Dwilani; Qazi Zada, Mohd Ziaolhaq
Indonesian Comparative Law Review Vol. 6 No. 2 (2024)
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v6i2.22369

Abstract

The Taliban takeover of Afghanistan on August 15, 2021, triggered a significant refugee crisis. By mid-2022, 2.8 million Afghan refugees were registered internationally, primarily in Pakistan and Iran, and by 2023, 4.3 million Afghans were internally displaced. Many at-risk Afghans were left behind as US-led forces withdrew. Despite resettlement efforts, many threatened by the Taliban remain excluded, as the Taliban targets former military, NGO workers, and Afghan government officials. Daily migration to Iran and Pakistan surged, with many seeking refuge through Iran to Turkey and Europe. This paper examines whether the current refugee protection mechanism can manage this influx. Using a normative legal research method, it analyzes secondary data from books, journals, reports, and documents, providing historical context on Afghan politics and displacement. It critically evaluates the international refugee protection regime, identifying gaps and shortcomings, particularly the lack of a binding responsibility-sharing mechanism. This has resulted in poorer nations hosting a disproportionate number of refugees, necessitating a commitment from the international community to address this inequity. The paper concludes with policy recommendations to improve the global response to the Afghan refugee crisis, emphasizing the need for equitable responsibility-sharing to enhance protection for Afghan refugees.

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