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Brawijaya Law Journal : Journal of Legal Studies

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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

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Articles 282 Documents

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STATE LIABILITY FOR VIOLATION OF CONSTITUTIONAL RIGHTS AGAINST INDIGENOUS PEOPLE IN FREEDOM OF RELIGION AND BELIEF Aditya, Zaka Firma; Al-Fatih, Sholahuddin
Brawijaya Law Journal Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights
Publisher : Faculty of Law, Universitas Brawijaya

The government is perceived as the main perpetrator on violations of freedom of religion and belief in Indonesia. As the state organizer, the government frequently issues discriminatory regulations and policies and tend to cause intolerance to minority religions and beliefs, particularly to indigenous peoples. While freedom of religion or belief is a constitutional rights that cannot be reduced and is guaranteed universally in constitution and laws, the law provides limitation that causes ambiguity in the fulfillment of the rights of religion and belief. In addition, the government mindset still adheres to the term of "official religion" and "non-official religion" in any policy-making, causing adherents of minority religions and beliefs to be considered as cultural heritage to be preserved. This creates injustice, discrimination, intimidation and intolerance in rights fulfillment in state and society life. This paper discusses the existence of the guarantee of freedom of religion and belief for indigenous people and state liability for violations of freedom of religion and belief. This research used normative juridical method with statute approach and conceptual approach.

JURIDICAL IMPLICATIONS OF THE LEGAL NORM VOID OF INTERFAITH MARRIAGES IN INDONESIA Indrayanti, Kadek Wiwik; Suhariningsih, Suhariningsih; Rubaâ€™i, Masruchin; Aprilianda, Nurini
Brawijaya Law Journal Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights
Publisher : Faculty of Law, Universitas Brawijaya

Legal void of interfaith marriages in Indonesia to date has not offered legal certainty and sense of fairness to couples of differing religions. Particularly, their rights to form a family and to freedom of religion are unprotected; whereas those rights are guaranteed by the 1945 Constitution of the Republic of Indonesia. Furthermore, the Constitutional Courtâ€™s ruling had rejected Judicial Review on Article 2 section 1 of Law No. 1 of 1974 against the 1945 Constitution of the Republic of Indonesia. The consideration provided by the Bogor District Court regarding the rejection was that the judgeâ€™s interpretation of article 2 section 1, yielded the assertion that marrying couples should have been of the same faith. The judge also took into consideration the religious values embraced by the prospective applicant who happened to be a Catholic widow while the prospective groom was a Muslim. A similar consideration was made by the Constitutional Court where in, among others, it was stated that the constitutional rights of marriage entailed the obligation to respect the constitutional rights of other people. Therefore, to avoid any conflicts in the implementation of those constitutional rights, it is necessary to have a regulation on the implementation of constitutional rights conducted by the state.Consequently, the juridical implications of interfaith marriage legal norm void give rise to the judgesâ€™ differing interpretations which are unfavorable to interfaith couples. The validity of these marriages cannot be accomplished, resulting in the marriages to be deemed invalid, implicating the status and position of women and children as well as heritance issues.

THE SEPARATION OF POWERS, ROLE OF THE PRESS AND THE EMERGENCE OF ONLINE MEDIA IN CHINA AND TAIWAN Smith, Kaaden
Brawijaya Law Journal Vol 4, No 2 (2017): Law and Sustainable Development
Publisher : Faculty of Law, Universitas Brawijaya

Despite sharing a common culture over thousands of years, the modern stance of the Chinese and Taiwanese governments relating to the separation of powers and human rights has taken a drastically different path over the past seven decades. This paper begins with a brief introduction to traditional Chinese jurisprudence and how it has been shaped in recent times by the emergence of Western legal principles.It further examines the correlation between the separation of powers and the diversity of political discussion and level of regulation in the media of the Peopleâ€™s Republic of China (â€˜PRCâ€™ or â€˜Chinaâ€™) and the Taiwanese Republic of China (â€˜ROCâ€™ or â€˜Taiwanâ€™), and how the constitutional and legislative provisions of each address these concepts and how they reflect international treaties adopted by each government. The emergence of online media to further demonstrate the different stances taken by the PRC and ROC on the adoption of these Western principles is analysed. Finally, the paper will examine the international criticisms the PRC and ROC face for their practices regarding media censorship.Â The paper suggests that maintaining a separation of powers is crucial in order to uphold a free, independent press.

Institutional and Legal Control of Gas Flaring in the Niger Delta Region of Nigeria Ijaiya, Hakeem; La-Kadri, Mutiat Abdulsalam; Jimoh, Maryam Bayero
Brawijaya Law Journal Vol 5, No 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

The emission of â€œgreenhouse gasesâ€ into the air has adverse effects on the environment. This study examines the effects of gas flaring on the Niger Delta Region of Nigeria. It analyses the institutional and legal framework that prevents gas flaring in the region. The paper appraises the effectiveness of the existing laws on gas flaring with a view to suggest viable means of reviewing the laws. The study found that continuous flaring of gas in the region over the last forty years has adversely bring about health challenges, climate change and loss of income in the region in particular and Nigeria as a whole. The study also found that the laws are too many and ineffective and that the regulatory institutions lack the necessary authority for their enforcement. The paper concludes that basic human rights can only be enjoyed in a pollution free environment. The paper therefore recommends amongst other that applicable laws should be amended, harmonized and domesticated where necessary.The study relies on primary and secondary sources of information like Constitution, Constitutional documents, Statutes, Judicial precedents, International Conventions and Treaties, Books, Journals and Internet materials. The information obtained through these sources was subjected to content analysis.

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

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 Residentâ€™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 Policeâ€™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.

A COMPARATIVE STUDY OF THE LEGAL FRAMEWORKS FACILITATING INDIGENOUS LAND MANAGEMENT IN POSTCOLONIAL SOCIETIES: INDIGENOUS AUSTRALIA AND INDONESIAN ADAT LAW Boag, Carly May
Brawijaya Law Journal Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective
Publisher : Faculty of Law, Universitas Brawijaya

Indigenous Land Management (ILM) encompasses traditional philosophies and practices of Indigenous people with contemporary scientific techniques to help improve the management and conservation of ecosystems. An effective legal framework for ILM promotes environmental justice by â€œprotecting and fulfilling of human rights through legal empowerment of peopleâ€[1] through meaningful participation in environmental decision making from a regional to an international scale, acknowledgment of cultural differences and the equal distribution of environmental benefits[2]. Both Indonesia and Australia were colonised by European powers with devastating effects on the Indigenous people. Since the 1980â€™s there has been increasing international attention surrounding the lack of environmental justice accessible to Indigenous peoples around the world. Regional, national and international legal frameworks are in place in both Australia and Indonesia to promote globally recognised concepts of ILM, however there is a need for more cohesive and integrated approach at all levels of environmental governance. Although there are historical, cultural and economic differences between Australia and Indonesia as well as different legal ideologies, a comparative study of the different legal frameworks surrounding ILM will provide an insight into the benefits and limitations of divergent policy strategies and the best way forward for Indigenous peoples in the Asian-Pacific region.Â Â

THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE Roy, Subir Kumar
Brawijaya Law Journal Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective
Publisher : Faculty of Law, Universitas Brawijaya

Sustainable development leads the society towards a new orientation and hammers on our cognitive faculty to see the perspectives of development in a new form which requires the radical change in social economic and political perspectives and thus gives birth of sustainable governance. Environmental governance is a precise term indicates towards the activities of various institutions and structure of authority related to protection of natural environment. Environmental governance and the sustainable governance are not same. The former aims to involve government, individuals, industries, civil societies, Internationals and non-governmental institutes in policy formulations and decision making process in environmental performances to face the challenges of the globalised world and to curb pollutant. On the other hand governance for sustainability is value based and advocates for the preservation of integrity of ecology of the Earth.Â The approach of Sustainable governance is very specific and target oriented i.e. save the planate, promote human development and achieve universal prosperity and peace. But still we have not been able to achieve the above targets despite of having a number of conventions, treaties, and covenants etc. Furthermore the theme of â€˜green economyâ€™ of Rio+20 is a contested concept and the critiques apprehend that it may downplay the concept of sustainable development. Under the above backdrop this paper intends to scan the global initiative towards ensuring sustainable governance and will also make analysis that whether still the focus of the UN is pointed on sustainable governance or wandering in jugglery of brown and green economy.

THE ANALYSIS OF ISLAMIC ECONOMY IN THE CONSTITUTION OF INDONESIA Hamidah, Siti; Bakri, Mochammad; Budiono, Abdul Rahmad; Winarno, Bambang
Brawijaya Law Journal Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights
Publisher : Faculty of Law, Universitas Brawijaya

The development of Islamic Economy has been flourishing in the life of Indonesian people and brings impacts to several aspects of life, including in the field of law serving as the juridical basis. Indonesia is not an Islamic country. Instead, it is a constitutional country that believes in one Supreme God and protects all people to practice their religions. The sociological condition of the majority affects the formulation of law and constributes to the positive law which includes in it the issue on constitutional law.This paper analyzes the flexibility of Indonesianâ€™s constitution in adopting and providing spaces for Islamic Economy as well as becoming the foundation for Islamic economy to fulfill the need of the society. Firstly, the analysis was conducted using theoretical approach viewed from the persepctive of the correlation between the state and religion, and the theory on legal pluralism. Further, the 1945 Constitution of State of Republic of Indonesia (Undang-Undang Dasar Negara Republik Indonesia/UUD NRI 1945), was analyzed to trace the basis of Islamic economy and to develop Islamic economy based on the Indonesianâ€™s constitution.

RADICALIZATION IN THE TEACHING RELIGION AND ITS RELATIONS WITH CRIMINAL ACTS OF TERRORISM Hasibuan, Hoiruddin; Sudarsono, Sudarsono; Nurjaya, I Nyoman; Sugiri, Bambang
Brawijaya Law Journal Vol 4, No 2 (2017): Law and Sustainable Development
Publisher : Faculty of Law, Universitas Brawijaya

The criminal act of terrorism is a crime against humanity, human civilization and constitute a serious threat to the integrity and sovereignty of a nation. In fact, terrorism can be a threat to a state security and sovereignty as well as world peace.It is argued that one of the main causes of criminal acts of terrorism is radicalization. Thus, this paper seeks to analyze the casual link between radicalization and terrorism. This paper determines to what extent does the radicalization affected the criminal acts of terrorism. This research uses a juridical normative method by analyzing legal instruments relating to terrorism and seeks to analyze the reason behind the provided rules.This paper submitted that while radicalization affected terrorism, de-radicalization is urgent in responding to terrorism. This paper also proposes how de-radicalization works in preventing terrorism.

MADE BY CHILDREN: THE EXPLOITATION OF CHILD LABOUR IN AGRICULTURE, INDUSTRY AND THE SERVICE SECTOR IN MAINLAND CHINA Nguyen, Cindy
Brawijaya Law Journal Vol 4, No 2 (2017): Law and Sustainable Development
Publisher : Faculty of Law, Universitas Brawijaya

This research essay examines the exploitation of child labour in agriculture, industry and the service sector in Mainland China. Child productivity in China has historically been essential to the survival of the family. However, the globalized environment has drawn emphasis to the reality that children are exploited and subject to dangerous work conditions. The aim of this research is to analyse the international legal framework and human rights conventions safeguarding the rights of the child. This involved the primary analysis of the Convention on the Rights of the Child, the Minimum Age Convention, the Universal Declaration of Human Rights and the Worst Forms of Child Labour Convention. The Procedure of the Conclusion of Treaties, Minors Protection Law, Provisions on the Prohibition of Using Child Labour, Regulations Banning Child Labour and Compulsory Education Law were critiqued to determine the effectiveness of Chinaâ€™s domestic legislation. The results demonstrated that child labour is currently not prohibited under Chinaâ€™s domestic law, a consequence of ineffective implementation of international treaties. To support this legal analysis, it evaluated academic research exploring the economic and cultural circumstances of China. It was found that globalization, rapid economic growth, a lack of education and social and cultural constructions of â€˜childâ€™ and â€˜childhoodâ€™ further contributed to the existence of child labour. The significance of these findings is that it highlights the difficulty involved in changing legislation when the economic and cultural forces strongly dictate against it. Children are ultimately unable to access justice as effectively as their adult counterparts do within Chinaâ€™s legal framework

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