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INDONESIA
Arena Hukum
Published by Universitas Brawijaya
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Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
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Articles 414 Documents
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National Law Development Perspective on Job Creation Law: A Critique Rilo Pambudi. S
Arena Hukum Vol. 17 No. 2 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum2024.01702.11

Abstract

Choosing ‘shortcuts’ is not always the best approach, especially when establishing national legal policy. For example, the establishment of Law No. 6 of 2023 on job creation (Job Creation Law) was intended to replace and eliminate the conditionally unconstitutional status of Law No. 11 of 2020 on job creation (Law No. 11 of 2020). The issue arises because the Job Creation Law was established through the issuance of government regulations instead of laws. This approach is more expedient than standard legislative amendments, but it reflects the government’s arrogance in the development of Indonesia’s law. Therefore, this article aims to analyse the establishment of the Job Creation Law, examine its justification based on a purported compelling exigency and explore its implications for national legal development in light of Constitutional Court Decision No. 91/PUU-XVIII/2020. Through a socio-legal inquiry, this study demonstrates that establishing Job Creation Law through a Perppu fails to meet the requirement of compelling exigency and undermines meaningful participation in improving Law No. 11 of 2020, as mandated by the Constitutional Court. The findings further suggest that the enactment of the Job Creation Law reflects an authoritarian approach to national law development, with its substance leaning towards orthodox law development.
Examining the Government's Efforts to Curb Abandoned Land Utomo, Setiyo
Arena Hukum Vol. 17 No. 2 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum2024.01702.8

Abstract

Controlling land indicated as abandoned is part of aligning agrarian reform goals. Effective land management will ensure land is used according to its intended purposes, including the right to cultivate. This study aims to describe and provide an overview of land classified as abandoned, focusing on land with cultivation rights granted and offers recommendations for respecting and protecting the community’s rights to the land they own. This study employs a normative juridical approach by comparing cases and statutory frameworks. The findings reveal various factors contributing to land abandonment and the government’s efforts to address this issue. Established norms should guide legal actions to achieve certainty and justice in land use. Implementing legal measures is part of harmonising existing regulations with societal realities, as outlined in paragraph 4 of the 1945 Constitution of the Republic of Indonesia, which mandates that the government protect the entire nation and promote the well-being of all citizens.
Polarisation of Islamic Scholars on the Legality of Cryptocurrency Usage as Currency Buana, Andika Prawira; Rizki Ramadani; Aan Aswari; Zainuddin
Arena Hukum Vol. 17 No. 2 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum2024.01702.12

Abstract

Cryptocurrency has become a key focus in the evolving landscape of virtual finance, sparking a divide among Islamic scholars. The debate centres on whether cryptocurrency should be considered permissible for transactions under Islamic law. This study explores the polarisation among scholars, some of whom permit cryptocurrency use while others prohibit it. Using normative legal research methods with statutory and conceptual approaches from an Islamic law perspective, the study draws on secondary data, including primary, secondary and tertiary legal materials. The findings reveal that some scholars oppose cryptocurrency due to its lack of intrinsic value and high volatility, which leads to gharar (uncertainty). Conversely, others argue that cryptocurrency can be permitted if limited to monetary functions and not for other purposes. The study concludes by recommending that, as cryptocurrency becomes increasingly prevalent, Islamic scholars should work to establish ijma’ (consensus) and qiyas (analogical reasoning) to form a clear basis for determining its permissibility according to Islamic principles.
Challenging The Investigator’s Investigation Termination Authority Without Public Prosecutor’s Approval Jefferson Hakim
Arena Hukum Vol. 17 No. 1 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum.2024.01701.10

Abstract

The principle of dominus litis is owned by the Public Prosecutor as the master of the case in the criminal justice system. The Public Prosecutor has a central role in criminal law enforcement which begins when following the progress of the investigation carried out by investigators to the execution of court decisions that obtain permanent legal force. However, the Criminal Procedure Law seems to exclude the absolute authority of the Public Prosecutor as the master of the case concerning the investigator’s authority to terminate an investigation without prior approval of the Public Prosecutor. This resulted in the Public Prosecutor not having a control function over the investigation executed by investigators with the potential for abuse of authority. The research method used in this study is normative juridical with descriptive analysis. This study used secondary and tertiary data, which were prepared and analysed according to the discussion in this study. The study reveals that the investigator’s authority to stop the investigation without prior approval from the Public Prosecutor is contrary to the principle of dominus litis attached to the Public Prosecutor associated with the Guidelines on the Role of the Prosecutor and the authority of the Public Prosecutor in England and Wales and South Korea.
The Procedural Law of State Administrative Courts As The Rule of Adjudication: Exploring Hart’s Theory Efendi, Aan; Sudarsono
Arena Hukum Vol. 17 No. 1 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum.2024.01701.11

Abstract

In Hart’s theory, law is a combination of two types of rules: primary and secondary. Primary rules regulate the behavior of individuals or institutions, while secondary rules relate to primary rules, including the rule of recognition to identify the primary rules, the rule of change to modify primary rules, and the rule of adjudication to address violations of primary rules. The law of administrative procedure is an adjudication regulation that resolves violations of primary rules governing the behavior of government organs in administering government. Using a doctrinal legal method, this study explores two problems: the rule of adjudication in Hart’s theory and the procedural law of administrative courts understood as the rule of adjudication according to Hart’s theory. The study results reveal that, first, in Hart’s theory, the rule of adjudication does not stand alone but is, instead, attached to the primary rules, which function to identify violations, adjudicate, and provide punishment or compensation for violations of the primary rules; second, based on Hart’s theory, the procedural law of administrative courts serves as a rule of adjudication for the adjudication process dealing with violations of primary regulations regarding the obligations of government organs in administering government which must be guided by legislation and the general principles of good governance.
The Urgency of Reforming Indonesian Arbitration Law From a Paradigmatic Perspective Taufiqurrahman, Taufiqurrahman; Endarto, Budi
Arena Hukum Vol. 17 No. 2 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum2024.01702.7

Abstract

Over time, a growing interest has emerged among various stakeholders in reforming Indonesia’s Law No. 30 concerning arbitration and alternative dispute resolution. The existing Arbitration Law is increasingly viewed as outdated and misaligned with global developments in arbitration. While the need to update Indonesia’s Arbitration Law is evident, it is essential to approach this reform with a well-defined direction rather than merely following current trends without purpose. This study explores the foundational paradigms that could guide Indonesia’s Arbitration Law reform. The study employs a normative legal research method, utilising both statutory and conceptual approaches. The findings suggest that the universalistic particularism paradigm could serve as a basis for reforming Indonesian Arbitration Law. It is recommended that the current Arbitration Law be maintained for domestic arbitration, while the UNCITRAL Model Law on International Commercial Arbitration should be adopted for international arbitration matters.
Fast-Track Legislation Yang Benar Dan Demokratis Fadli, Mohammad; Putra, Marsudi Dedi; Sholehudin, Miftahus
Arena Hukum Vol. 16 No. 3 (2023)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum.2023.01603.1

Abstract

The complexity of social issues is growing in line with the growing modern technology these days, which is disproportionate to its interrupted regulation in the law concerned. Using a comparative and conceptual approach, this article seeks to discuss under what circumstances this fast-track legislation can be implemented and how fast-track legislation should be correctly and democratically implemented. The results show that, fast-track legislation must apply under certain circumstances and be selected, thereby not applying to all bills, and the law-making stages should not be reduced. Second, fast-track legislation must take into account democratic principles in the legislation, or it must comply with procedures, participation, public access, or transparency. Such particular circumstances require simplification of particular stages, while the essence of the democratically-formed legislation must remain.
Special Testimony as a Reforming Concept in the Indonesian Juvenile Criminal Justice System Anam, Khairil; Windari, Rusmilawati
Arena Hukum Vol. 17 No. 2 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum2024.01702.2

Abstract

Children who have suffered from sexual violence face an increased risk of re-victimisation during judicial proceedings. A study by Hannah (2019) and Nina Papalia (2021) indicated that approximately 50% of child victims experience re-victimisation during trials, as they are required to relive their traumatic experiences. Countries like Norway and Brazil have introduced additional preventive measures to mitigate these negative effects. This normative study utilises statutory, conceptual and comparative approaches, aiming to examine the regulations governing the testimony of child victims of sexual violence in Indonesia, Norway and Brazil. Additionally, it seeks to identify positive aspects that could enhance Indonesia’s juvenile justice system. The findings suggest that Brazil’s ‘Special Testimony’ model for child testimony is more suitable for adoption in Indonesia than the ‘Nordic Model’ used in Norway. The ‘Special Testimony’ approach that could be integrated into Indonesia’s juvenile justice system includes (1) conducting investigations with electronic recording, which can be used as evidence in court; (2) having testimony examined by a psychologist or investigator trained in child psychology; (3) limiting a child’s testimony to a single occurrence during the investigation stage, unless deemed necessary by the judge; and (4) utilising technology or electronic devices during special examinations by a psychologist in a designated interview room.
Factual Actions as Objects of State Administrative Disputes in State Administrative Courts Following the Issuance of the Job Creation Law Cahyandari, Dewi; Ayub, Zainal Amin; Pratama, Luvieandra; Sudjati, Xaviera Qatrunnada Djana
Arena Hukum Vol. 17 No. 1 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum.2024.01701.5

Abstract

The State Administrative Court Law currently in force presents contradictions, given that administrative activities represent one of its objects, which are inherently dynamic. This raises a significant question about whether the State Administrative Court Law, enacted in 1986, can still uphold its substantive principles. This study focuses on the discussion of factual actions. The Job Creation Law subsequently removed the determination of fictitious positive cases from the jurisdiction of the State Administrative Court. This study aims to describe, analyze, and disclose the fundamental meaning of factual actions as the objects of administrative disputes in the State Administrative Court. The study employs a normative method with legislative and philosophical approaches. The interpretation of factual actions as objects of administrative disputes in the State Administrative Court, following the issuance of Government Regulation in Lieu of Law No. 2 of 2022, requires that a request to a government official or body not addressed within the stipulated time frame is legally considered de facto granted. It is essential to consider the reality in the field, recognizing that the role of the State Administrative Court remains necessary to ensure legal certainty and protection for individuals or legal entities (Indonesian citizens) who submit requests for decisions to government officials or bodies.
Reconstruction of Restitution as an Additional Punishment for Victims of Criminal Acts Aprilianda, Nurini; Mufatikhatul Farikhah; Ryan Ilham Fibriansyah; Nadhilah A. Kadir
Arena Hukum Vol. 17 No. 2 (2024)
Publisher : Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.arenahukum2024.01702.1

Abstract

Victims of criminal acts, as individuals who suffer harm, deserve comprehensive protection, particularly in the process of recovering their losses. The enactment of the National Criminal Code has recognised this need by including compensation as an additional form of punishment. However, the current framework has significant shortcomings. Since this additional punishment is not mandatory, victims are not guaranteed compensation, undermining the principle of justice. This study explores the need to reform the existing system to ensure fair and effective restitution for victims. Based on normative research utilising a statutory approach and interpretative analysis, the findings suggest that positioning criminal compensation as a primary form of punishment within the National Criminal Code would better serve justice. By elevating criminal compensation to a primary punishment, the system would provide victims with greater certainty in securing recovery from the perpetrator.

Page 38 of 42 | Total Record : 414

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