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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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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

This research analyses the Bangladeshâ€™ 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 Bangladeshâ€™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.

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

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 bothÂ by the governmentÂ and businesses and their co-ventures . These businesses tend to commit violations by using and disseminating customersâ 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 Indonesianâs and foreigner partiesâ interests privacy on personal data.Â 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

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.Â 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.

Pornography and Sexual Crimes towards Children in Indonesia: A Judicial Approach Sulistyo, Faizin; Manap, Nazura Abdul
Brawijaya Law Journal Vol 5, No 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

Pornography and sexual crimes against children are two forms of crime in Indonesia. Both of these crimes in various cases have a linkage with each other, whether one of which is a crime or pornography becomes a criminogenic factor for the onset of sexual crimes against children. The review in this article attempts to look at the approach used by judges in deciding cases of sexual crimes against children that correlate with pornographic crimes. This research employs normative juridical research using legislation and case approach.The results of the review found that, in sum, there are two model of approach used by the Court in deciding criminal cases, especially pornography related to sexual crimes, which include the approach in understanding and assesing cases; and theories of punishment approach. While the rfirst model of approach emphasizes on the understanding the impact of the action, the secodn model look more at the retaliation, prevention, combination and contemporary approach. It is further argued that those two models are not necessarily used separately. The combination of the two models can also be employed, such as in the case of Tanjung Pati District Court's Ruling no. 58 /Pid.B/ 2011 /PN.Tjp. In fact, in the case, the judges combine several approaches in deciding cases and punishing defendants. It is submitted that the objective of a judge is crucial since the objectivity resulted in a fairer verdict for the victim, the community or the perpetrator himself.

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

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.

Conflict in Management of Passive State Administrative Decision in State Administrative Dispute Wereh, Agustien Cherly; Istislam, Dr
Brawijaya Law Journal Vol 5, No 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

The governmentâ€™s task to achieve the stateâ€™s objective is provided in the preamble of the 1945 Constitution of the Republic of Indonesia. In the governance system, societies often encounter tough situation, while administrative law has specially actualised constitutional norms of correlation between the state and its societies. The administrative management in the Law is seen as essential instrument of a democratic state of law, in which decision and/or act is determined by an entity and/or a government official or government apparatus involving executive, judicative, and legislative entities that run governmental functions which are possible to be examined at court. The research problem presented in this research is why there are differences between positive-passive system (stelsel) and negative-passive system regarding the management of state administrative decision. This research employed normative legal research along with prescriptive analysis method. The research result indicates that the emergence of conflict in passive administrative state management is caused by the inaccuracy of legislation in formulating laws.

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

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.

Right to Information, Judicial Activism and the Rule of Law: The Case of Indonesiaâ€™s Mining Litigation Safitri, Myrna Asnawati
Brawijaya Law Journal Vol 5, No 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

The right to information is fundamental in environmental protection. Lack of access to information regarding environmental planning and licensing has often lead to public interest environmental litigation. The right to information is also an element in the formation of the rule of law in both its formal and substantive aspects. Mining must be cautionary conducted due to its high potential for environmental damage and pollution. This paper discusses the extent to which is the right to environmental information protected in Indonesia through several cases of mining litigation. Using statutory and court cases methods, it discusses laws on the rights to information in general and in the field of environmental protection, how Indonesian courts have interpreted the government obligations to fulfill citizens' access to mining information, and the extent to which that legal interpretation contributes to the rule of law elements. This paper then concludes that the right to mining information is still difficult to attain. Public bodies tend to prioritize formal-procedural aspects in providing information and setting up a public consultation. However, the cases studied indicate that judicial activism has provided corrections to such a procedural approach. More substantive rule of law principles used by the courts to interpret mining zones and environmental permits procedures.

Analysis of State Control Over Natural Resources Oil and Gas (According to Law No. 22 of 2001 Concerning Oil and Gas) Sibarani, Sabungan
Brawijaya Law Journal Vol 5, No 2 (2018): The Role of State in Contemporary Legal Development
Publisher : Faculty of Law, Universitas Brawijaya

Most gas-producing companies are the same foreign companies as oil-producing companies. Investment to produce gas is funded by government banks in industrialized countries. Thus, the exploration and exploitation of natural gas is intended to meet export needs to industrialized countries. Article 33 of the 1945 Indonesian Constitution envisages that the use of natural resources should be prioritized to the maximum extent possible to meet domestic needs and the greatest prosperity of the people. This implies state control over the use of natural resources. It is argued that mining business arrangements, especially Oil and Gas, can be considered as a part of the implementation of state control over natural oil and gas resources. This means that the authority in controlling natural resources of Oil and Gas is only controlled by the State and carried out by the Government as the executor of Oil and Gas business activities. Such arrangement is in accordance with the provisions of Article 4 paragraph (1) and (2) Law No . 22 of 2001 concerning Oil and Natural Gas. This paper analyses the State control over the use of oil and gas as natural resources. The analyses was carried out through the study of the Decision of the Constitutional Court of the Republic of Indonesia Number: 002 / PUU-I / 2003. Using normative juridical approach, this paper argues that the Indonesian Laws on oil and gas are incontrary with the 1945 Indonesian Constitution.

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

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.Â

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