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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 287 Documents
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Model of Prevention of Social Conflict which Multi Dimensions Based on Local Wisdom of Community Adat Dalihan Na Tolu Harahap, Anwar Sadat; Hasibuan, Ahmad Laut
Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.02.01

Abstract

The main purpose of this research is to find a model of punishment in preventing social conflict on local wisdom of Dalihan na Tolu indigenous people. The questions posed in this research include the multi-dimension social conflict prevention model based on local wisdom of Indonesia, the deliberation stage of preventing such conflict and strategies adopted by local wisdom to resolve social conflict. The research further focuses its examination on local society that is Dalihan na Tolu indigenous people. This research uses empirical juridical research method, which is departed from local wisdom norms, or known as adat laws and examines the application of such laws in society. This research proposes that the multi-dimensional model of social conflict prevention should be carried out using the rules contained in: Dalihan na Tolu custom, Sipaingot, Pastak ni Paradaton, Uhum dohot Patik, Hapantunon, Tutur dohot Poda, Marga, Martahi, Mangupa. While the system and strategies of negotiation to reach consencus in preventing multi-dimensional social conflict based on the following norms: Tahi Ungut-ungut, Tahi Dalihan na Tolu, Tahi Godang Parsahutaon and Tahi Godang Haruaya Mardomu Bulung. It is argued that the punishment model usually used by Batak community should be adopted both in preventing as well as resolving social conflict exists in society.
Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited Rahman, Md Mustakimur
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.04

Abstract

This research analyses the Bangladesh's Court Decision on the case of Ataur Rahman vs. Mahibur Rahman with regrad to fundamental rights in times of emergency. It is argued that the decision of the court in Ataur Rahman vs. Muhibur Rahman is erroneous decision. This is because while Article 141C of Bangladesh Constitution gives the Presidnet the power to suspend certain fundamental rights, yet Articles 27 to 35 and 41 of the Constitution cannot be suspended. In Bangladesh's legal system, fundamental human rights are commonly viewed as a set of legal protections. Part III of the Constitution of Bangladesh has confirmed these rights for the citizens of Bangladesh. Some fundamental rights are even universally recognized rights which are contained in the United Nations Universal Declaration of Human Rights (UDHR), the UN International Covenant on Civil and Political Rights (ICCPR), or the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 4 of the ICCPR deals with the state of emergency and Article 4(2) provides a list of non-derogable rights. Such as the right to life, the prohibition of torture, slavery etc. These rights are completely non-derogable in nature and cannot be derogated at all including during a state of emergency. Furthermore the Apex court of Bangladesh tried to justify that the President can derogate any fundamental right during an emergency. Such a proposition is contradicting core parts of our Constitution as well as several international instruments. This research uses normative legal research with statute approach and case approach, especialy analysing Ataur Rahman vs. Muhibur Rahman case.
In Search of Remotely Piloted Aircraft Regulations State Practices and International Law Perspective What Indonesia can Learn? Uweh, Atip Latipulhayat; Ruhaeni, Neni
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.05

Abstract

Remotely Piloted Aircraft (RPA) has been used for different purposes, from hobby to military purposes. The rapid development of RPA’s technology has made RPA regulations in most countries become more quickly obsolete. It is exacerbated by the fact that there is no agreed internationally RPA regulation so far, except an amendment of Annex 2 of the Chicago Convention 1944, which broadens the notion of aircraft to include RPA. This article identifies legal issues and models of RPA regulation in several countries and what Indonesia can learn and to look for an adequate and appropriate model to make the Indonesian RPA regulation, legally acceptable and technologically adaptable. This paper argues that the Chicago Convention, the model of RPA regulations in several countries, and the special interests of Indonesia as an archipelagic state are the three important elements that should be taken into account in the establishment of an appropriate and adequate Indonesian RPA regulation. This paper used normative method whcih analysing existing legal framework in RPA
The Struggle of Becoming the 11th Member State of ASEAN: Timor Leste's Case Windraskinasih, Mutiara; Afriansyah, Arie
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.06

Abstract

In March 4, 2011, Timor Leste applied for membership in ASEAN through formal application conveying said intent. This is an intriguing case, as Timor Leste, is a Southeast Asian country that applied for ASEAN Membership after the shift of ASEAN to acknowledge ASEAN Charter as its constituent instrument. Therefore, this research paper aims to provide a descriptive overview upon the requisites of becoming ASEAN Member State under the prevailing regulations. The substantive requirements of Timor Leste to become the eleventh ASEAN Member State are also surveyed in the hopes that it will provide a comprehensive understanding as why Timor Leste has not been accepted into ASEAN. Through this, it is to be noted how the membership system in ASEAN will develop its own existence as a regional organization. This research begins with a brief introduction about ASEAN's rules on membership admission followed by the practice of ASEAN with regard to membership admission and then a discussion about the effort of Timor Leste to become on eof ASEAN member state.
The Roles of International Law on Technological Advances Latifah, Emmy; Imanullah, Moch Najib
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.07

Abstract

The study focuses on the roles of International Law in responding to the technological advances, particularly examining the International Law as a regulator on emerging technology. The technological advances, especially in the means and method of war and environmental issues, have been contributing to the development of International Law. It is a normative legal research using the secondary data including primary and secondary legal materials. While the primary legal materials consist of all the international agreement related to the development of technology both directly and indirectly, secondary ones included the references having correlation and support to the issues. The technique of analysis data used legal interpretation. The study concludes that as a regulator of technological advances, International Law has a role to play in regulating its development. Many facts showed that International Law has capability to respond to the challenges. However, the scope and application of International Law is subject to a number of limitations inherent the nature of International Law itself.
Implementation of Resolution No. 4/2016 of the ICPO-INTERPOL Concerning Biometric Data Sharing: Between Countermeasures Against Terrorist Foreign Fighters (FTFS) and Protection of the Privacy of Indonesian Citizens Paripurna, Amira; Indriani, Masitoh; Widiati, Ekawestri Prajwalita
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.08

Abstract

This study aims to identify and explore the challenges in the implementation of Resolution No. 4/2016 of the ICPO-INTERPOL concerning sharing and exchanging biometric data among the members of ICPO-INTERPOL in order to counter terrorist foreign fighters (FTFs). This research also aims to elaborate and describe the mechanism of collecting, recording, storing, and exchanging biometric data conducted by the Indonesian government. The mechanism of collecting, recording, and storing biometric data works through 3 main doors, namely: 1) in the process of making electronic Resident's ID Cards (e-ID Cards); 2) in the process of making SKCK (Certificates of Police Record); 3) in the process of making e-Passports. In the implementation of Resolution No. 4/2016 of ICPO-INTERPOL, the most obvious obstacles and challenges are the absence of regulations concerning the protection of personal data, and also the fact that the biometric data system itself is still relatively new and the database is not fully developed. Until today, the INTERPOL National Central Bureau (NCB) for Indonesia does not have its own biometric database system; instead they are using the database that is centralized at Pusinafis Polri (the Indonesian National Police's Center of Automatic Fingerprint Identification System). The results of the study reveal that the biometric data recorded, collected, and stored are big data, but so far in supporting law enforcement and crime prevention processes the data have only been used as comparative data. In addition, there have also been found indications of violations of personal data and privacy, for example in relation to the absence of mechanism for data retention, consent, processing, notification, and disclosure.
Protecting Privacy on Personal Data in Digital Economic Era : Legal Framework in Indonesia Rosadi, Sinta Dewi
Brawijaya Law Journal Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.01.09

Abstract

Within the last five years it is noted that the people of Indonesia has become more aware of their privacy on personal data since their personal data is being collected, distributed and disseminated without their prior consent both by the government and businesses and their co-ventures . These businesses tend to commit violations by using and disseminating customers's data without the consent of their respective customers. This article focuses on Indonesian legal framework on the Privacy on personal data. It is argued that although there is existing laws in the privacy on personal data, however, those legal framework still developed in very sectoral nature. It is submitted that the most suitable regulatory concept for Indonesia is a combination regulatory concept, or hybrid concept., which protect Indonesian's and foreigner parties's interests privacy on personal data. To investigate existing laws in personal data protection, this research examines both national as well as international and regional legal framework in personal data protection. Comparison between Indonesia and the practice of other ASEAN states is also conducted to determine the most suitable approaches in addressing the protection of personal data.
Cultural Concern under Trade and Investment Agreements: Does it Really Work? Widiatedja, I Gusti Ngurah Parikesit
Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.02.02

Abstract

There has been a concern over the adverse influence of globalisation on local culture. Trade and investment agreements have included cultural concern in their provisions.  Employing these provisions, countries initiated trade and investment-related measures to secure what they have presumed as cultural traditions and values. This article seeks to examine if the incorporation of cultural concern under trade and investment agreement is effective to reconcile the need for securing culture and the spirit of free trade and free flows of investment. This article is normative research, examining the existing cultural concern under trade and investment agreements, cultural-related measures of particular countries, and how the judicial bodies have responded these measures in their decisions. This article argues that the incorporation of cultural concern has triggered a wide range of cultural-related measures. Nevertheless, the decision of judicial bodies, to some extent, has been effective to shield the purpose of cultural concern, especially to avoid disguise or inefficient protectionism, and to admit the right of countries to protect or promote their cultural traditions and values.
State Role in Balancing Harmony in a Diversed Society: Regulating Religions in Indonesia RS, Iza Rumesten
Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.02.03

Abstract

As a State in which its society believes in the existence of God, it is not a surprising fact that a number of religions developand recognized in Indonesia. These include Islam, Catholic, Protestan, Hindu, Budha and Konghucu. Since most of Indonesian people are the followers of Islam, this religuions become the majority in Indonesia. Certain matters are regulated separately from the national laws, so that such laws only applicable for muslim. These include arrangement on marriage between moslem, which is provided by Indonesian Act Number 1 Year 1974 on Marriage. Indonesia also has a specific religious court for moslem. The competence of religious court for moslem is clearly stipulated in Article 1 paragraph (1) of Act Number 50 Year 2009 on Religious Courts. Article 49 of the Act stipulates that the religious courts have the duty and authority to examine, decide, and resolve cases in the first instance among Moslim in the field of marriage, inheritance, will, grant, waqaf, zakat, infaq, shadaqah and sari'ah economy.While some argues that the existance of religious court can be seen as Government failures in guarantee constitutional rights for minority, this paper seeks to find how to prevent potential religious disharmony in Indonesia. Based on the results of normative juridical research, it can be concluded that ideal arrangements related to religion is that it cannot separate the judiciary between Islam and other religions, because it might create possible sense of injustice and disharmony of minority religions. Thus, a specialized religious court for moslem might not be necessary.
Recent development of Civil Procedural Law in Thailand: the Class Action and the Legal Execution Wisuttisak, Pornchai
Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2018.005.02.04

Abstract

The paper aims to study on the overview of civil procedural law in Thailand with emphasis on the recent amendment regarding to class action and legal execution. The civil procedural law in Thailand, known as Procedural Use of Civil and Commercial Codes Act 1937 was passed in 1938 as to formulate the trail, execution of judgment, and appeal in civil and commercial codes. The civil procedural law in Thailand became a vital legal rules governing a proper civil trial and judgments. This Thailand Civil Procedural Law was recently amended on the provisions of class action and the efficiency of the legal execution. It is argued that such amandment create vital impact to legal practices on civil procedurals in Thailand. The amendment helps to modernize the rules for class action and facilitates the process on legal execution in Thailand. Adopting juridical normative method with statute approach, this paper submitted that civil procedural law should be amended throughfuly and not only partialy to keep up with the rapid changes on civil and commercial cases. To achieve this, more amandments of Procedural Use of Civil and Commercial Codes Act 1937 need to be done.

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