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Brawijaya Law Journal : Journal of Legal Studies
Published by Universitas Brawijaya
ISSN : 23564512     EISSN : 25030841     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id
Arjuna Subject : -
Articles 282 Documents
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Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism in the Context of Enhancing the Indonesian Constitution Tan, David
Brawijaya Law Journal : Journal of Legal Studies Vol 8, No 2 (2021): State Administration Role in Establishing Constitutional Obligation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.02.02

Abstract

A lot of literature discusses the role of state administration, but there is still very little that emphasizes the unique picture related to juxtaposing aspects of fiduciary constitutionalism with administrative constitutionalism, especially at the stage of constitutional legal studies with the context of constitutionalism in Indonesia. Implementing a fiduciary state administration is very much needed, but the most significant obstacle is the enigma of administrative constitutionalism. The purpose of this inquiry is to analyze the development of the Indonesian Constitution in the future by elaborating the theory of fiduciary constitutionalism, issues related to administrative constitutionalism, and discussions related to the incorporation of the former and the latter into the practice of legal and political representation in the Indonesian Constitution using the perspective of judicial engagement theory. The research method used is the doctrinal legal approach using secondary data in the legal literature to gain academic insight. This research finally leads to a conclusion that focuses on the aspects of fiduciary and administrative constitutionalism, which can explain this phenomenon in enhancing the Constitution in Indonesia through several internalized recommendations.
Fraud in the comperative perspective of civil and criminal law with special focus in Kosovo Hajdari, Egzonis; Hajdari, Albulena; Hajdari, Azem
Brawijaya Law Journal : Journal of Legal Studies Vol 8, No 2 (2021): State Administration Role in Establishing Constitutional Obligation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.02.04

Abstract

The object of this study is fraud in the comparative aspect of civil and criminal law based on the relevant legislation and Kosovo legal theory. The results of this study prove that fraud in the Kosovo courts practice is relatively common, and that there are many irregularities in its handling. Irregularities mostly refer to the lack of clarity matter of differences that this harmful phenomenon contains in itself when handled in the civil legal aspect from the treatment given to it in the criminal legal aspect. These uncertainties have influenced that in each concrete case the phenomenon of fraud in Kosovo is first addressed in the criminal aspect and then eventually in the civil aspect. The study highlights the similarities, differences and existing ambiguities of fraud when handled in the civil legal aspect from the treatment given to it in the criminal legal context, as well as it addresses the appropriate ways of clarifying such situation. The contribution of this study is theoretical and practical, bearing in mind the fact that it deals with an almost unaddressed issue in Kosovo and perhaps in many other countries.
Understanding the Rejection of Omnibus Law and Prediction of Judicial Review Submission to the Constitutional Court Widiyanti, Marlina
Brawijaya Law Journal Vol 8, No 2 (2021): State Administration Role in Establishing Constitutional Obligation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar

Abstract

The purpose of this legal and constitutional study was to deeply understand the causes and impacts of rejection of the ratification of the Omnibus Bill and its derivatives of the Job Creation Bill by demonstrators consisting of students and laborers throughout Indonesia. To make it easier for us to understand the above problems, we have carried out a series of data collections since the Omnibus Bill was discussed until it was passed by Parliament and rejected by demonstrators. For data, secondary legal information in the form of legal publications, textbooks, journals, and court decisions related to the Omnibus Law and other information in the form of articles published in the mass media has also been used as data. Finally, we can conclude that the findings include: Several laws originating from the Omnibus law have legitimized environmental destruction, ignoring customary rights that are more environmentally friendly and sustainable. The majority of the Omnibus Law committee comes from the elite who do not think about the civilian element, including the new law derivative people. The Omnibus Bill is believed to have participated in enslaving workers under the pretext of legal flexibility through low wages, hourly wages, and the use of work contracts and outsourcing to win over companies. The government looks repressive towards its people through the Omnibus Law, which looks unique to business people so that rejection and predictions will lead to the Constitutional Court.
The Politics of Indonesia's Decentralization Law Based on Regional Competency Prasetyo, Ngesti Dwi; Fadli, Moh.; Anshari SN, Tunggul; Ali Safa’at, Muchamad
Brawijaya Law Journal : Journal of Legal Studies Vol 8, No 2 (2021): State Administration Role in Establishing Constitutional Obligation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.02.01

Abstract

Local governments have undergone various regulatory developments since Indonesia's independence 75 years ago. Various aspects underlying the development and changes in local government policies can be analyzed using several approaches, such as historical, philosophical, and sociological. This paper will discuss how the legal politics of the development of local government implementation, especially in terms of decentralization. Furthermore, the author will explain about the opportunities for implementing decentralization based on regional capacity to promote welfare of society. This research is normative juridical research using historical approach, conceptual approach, and legal approach. It can be said that the implementation and development of local government implementation is strongly influenced by various aspects other than the legal factor itself. Furthermore, there is still the possibility of implementing decentralization based on regional capacity as an effort to promote social welfare.
Strengthening Regulations in Protecting Indonesian Migrant Workers Before Departing to The Destination Country of Work Khairazi, Rifqon
Brawijaya Law Journal Vol 8, No 2 (2021): State Administration Role in Establishing Constitutional Obligation
Publisher : Faculty of Law, Universitas Brawijaya

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Abstract

So far, there have been many legal problems that have emerged by migrant workers. The issues they face dominated when they work for an employer abroad; most of the cases come from the domestic worker group. This study analyzes the reasons and legal problems that cause Indonesian migrant workers to experience many violations of their rights. This paper's research method is the normative legal method, using legal documents in the form of statutory regulations and several supporting references related to migrant workers. The results showed that the violations that occurred so far were due to many migrant workers who did not get their rights and protection Before Working. In addition, numerous migrant workers departed without going through a departure mechanism following Act No. 18 of 2017. Thus, this article provides suggestions for strengthening regulations regarding migrant workers by amending to the current law and strengthening existing rules through government regulations.
The History and Origin of Fraud as a Defect in Consent in Contractual Relationships Hajdari, Egzonis
Brawijaya Law Journal Vol. 8 No. 1 (2021): Contemporary Issue in Private Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.01.02

Abstract

Fraud is a specific type of defect in consent that manifests the purpose of one of the parties to establish a contractual relationship through deceptive actions. As such, fraud is an unlawful and unethical action that emerged beginning with some of the earliest agreements in human society. Moreover, the practical treatment of fraud is likely to have occurred since the genesis of its appearance. More appropriate and advanced treatment of fraud can be seen after the implementation of the first legal systems, which focused on contractual relationships. Fraud in contractual relationships will be examined starting with Babylonian, Ancient Greek, Roman, and Islamic law and will continue with a focus on Albanian customary law and modern laws implemented in Kosovo. Furthermore, in this article, we will show how the treatment of fraud has evolved in the legal framework in Kosovo.
Conditional Decisions as Instrument Guarding the Supremacy of the Constitution (Analysis of conditional decisions of Indonesian Constitutional Court in 2003 - 2017) Safa'at, Muchamad Ali; Eko Widiarto, Aan
Brawijaya Law Journal Vol. 8 No. 1 (2021): Contemporary Issue in Private Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.01.06

Abstract

The function of the Indonesian Constitutional Court as the guardian of the constitution is mainly conducted through the judicial review authority. From 2003 to April 2021, the Constitutional Court has received and decided 1392 petitions over judicial review. In its dictums, the Constitutional Court often declares conditionally constitutional or conditionally unconstitutional (conditional decision). The conditional decision is a decision of the Court that declares the reviewed norm conditionally constitutional or unconstitutional. The norm is constitutional if interpreted according to the Court interpretation, or the norm is unconstitutional if interpreted in specific ways. This research investigates the criteria of judicial review decisions that declare conditionally constitutional and conditionally unconstitutional according to the characteristics of norms of the law reviewed. The analysis was limited to the Court decisions from 2003 to 2017. The research result indicates that distinguishing characteristics of norms reviewed have no correlation with conditionally constitutional or conditionally unconstitutional options.  Conditionally Constitutional Decision was used by the Court before replaced by Conditionally Unconstitutional Decision due to the weakness of decision implementation. For conditionally unconstitutional decisions are connected to the substance of the decision, creating a new norm that replaces, limit, or elaborate reviewed norm. The conditional decision is still required due to the following three aspects: enforcement of the supremacy of the constitution, the presumption of validity, and strengthening the execution of Constitutional Court decisions.
Childhood Statelessness: Critiquing International Norms and Enforcement Strategies R K, Biju
Brawijaya Law Journal Vol. 8 No. 1 (2021): Contemporary Issue in Private Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.01.07

Abstract

Over the past decade, there has been renewed interest in and commitment to resolving the endemic problem of statelessness, most clearly exemplified by the United Nations High Commissioner for Refugees’ Global Action Plan to End Statelessness 2014-24, which sets out to end statelessness by 2024. Despite the plethora of recent attention to questions of citizenship, its converse, the problem of statelessness and its effect on children, has not been adequately investigated. This paper attempts to delineate the causes of childhood statelessness in particular and to analyze the international legal framework for reducing and preventing it. It examines how statelessness is created, how it persists and why it brings with it the deprivations it does. It then subjects the customary and modern international legal norms governing childhood statelessness and enforcement strategies at Global level to close scrutiny and identifies the clearly discernible drawbacks and road blocks. It concludes with suggestions, inter alia, to make the jus soli citizenship a mandatory default clause in the citizenship laws of every country, to further prioritize birth registration and data collection and to strengthen the UPR process and reporting procedure.
Land Procurement for Upstream Oil and Gas Business Activities in Indonesia Subadi, Subadi
Brawijaya Law Journal Vol. 8 No. 1 (2021): Contemporary Issue in Private Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.01.03

Abstract

This paper aims to provide an understanding and insight regarding land procurement for oil and gas exploration activities and the development of regulations or legal and policy breakthroughs that have so far not been or very little exposed. Land procurement has always been a serious obstacle or obstacle to oil and gas exploration activities in Indonesia. Land procurement for oil and gas exploration using a business to business (B to B) mechanism makes it very difficult for SKK Migas and the contractor. In recent years, the government has made legal breakthroughs to simplify and accelerate the land procurement mechanism for exploration activities. This study uses a normative juridical method supported by in-depth interviews with legal experts, land acquisition committees, and landowners and has produced conclusions: First, the business to business (B to B) mechanism often faces obstacles and obstacles, such as; 1) refusal from the landowner; 2) inconsistency with the spatial layout; 3) there is a land dispute with other parties; 4) it is difficult for oil and gas contractors to process land certification. Second, discretion is considered as a legal breakthrough or new policy that is ideal in helping to smooth and accelerate the process of oil and gas production in Indonesia.
The Notion of Divine Principle (Asas Ilahiah) in Indonesian Contract Law Djumikasih, Djumikasih; Luth, Thohir; Budiono, Abdul Rachmad; Koeswahyono, Imam
Brawijaya Law Journal Vol. 8 No. 1 (2021): Contemporary Issue in Private Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.01.09

Abstract

This study is legal research aiming to find out the essence of Divine Principles in Indonesian Contract Law from the review of the Natural Law theory, the Sunt-Servanda theory, the Awareness and Legal Obedience Grundnorm theory, and Truth theory. This research reveals that the Divine Principle's essence is the most fundamental principle or guideline derived from God but exists in humans, aiming to find the truth and regulate the parties in making agreements. The application of the Divine Principle aims to find the truth and regulate the parties in the agreement's field.  Indonesian citizens could realize and practice the Precepts of Godhead in their agreement activities. In establishing the agreement, the parties are applying the teachings of their respective religions. This study reveals that the Divine principle needs to be incorporated into one of the upcoming National Agreement Laws principles, especially in the contract born because of the agreement. This study maintains that the divine principle can be applied comprehensively for Indonesian citizens who are parties to the agreement, not only limited to the Indonesian Muslim citizens.

Page 12 of 29 | Total Record : 282

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