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PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)
Published by Universitas Padjadjaran
ISSN : -     EISSN : -     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Arjuna Subject : -
Articles 518 Documents
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Covid-19 Induced Virtual Courts Sessions in Nigeria: Practicalities and Impracticalities Ademola Sunday-Ayeerun; Eti Best Herbert; Ngozi Chinwa Ole
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 2 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

The Presidential Declaration of Corona Virus Disease 19 as a ‘dangerous contagious disease’ occasioned the emergence of several regulations imposing restrictions on movements and social distancing measures. The Chief Justice of Nigeria and other heads of court also approved the Guidelines and Practice Directions containing modalities for virtual court sessions. This paper aims to examine the legal implications of virtual court session. The traditional requirement that court sessions should be held in places open to the public signifies a constitutional disapproval of virtual court sessions. It is contended that Practice Directions and Guidelines are weak mechanisms for entrenching virtual court sessions in Nigeria since they are within the lowest rung of the hierarchy of laws. Hence, the reform needs to be holistic. It should entail amendment of certain provisions of the constitution, laws, and rules of courts to enable a virtual innovation without legal hiccups. In alternative to constitutional amendment which usually takes long, this work, in addition to predicting the decision of the apex court on six grounds, suggests the immediate need for a judicial intervention in interpreting the constitutionality of virtual court session. This is to put to rest the fear harboured by some individuals that the serious judicial efforts put in by judges and counsel via virtual court sessions would end up becoming a nullity on appeal to the apex court.DOI: https://doi.org/10.22304/pjih.v9n2.a7  
The Dichotomy of Jus Ad Bellum and Jus Ad Bello in the 21st Century: Its Relevance and Reconstruction Sefriani Sefriani
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 2 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

Classical international law recognizes a rigid, autonomous, and independent dichotomy between jus ad bellum and jus in bello, which can result in the possibility of a just war being carried out illegally or vice versa. The dichotomy is considered a paradox. This study aims to analyze the relevance of the jus ad bellum and jus in bello dichotomy in the 21st century and to offer a more precise reconstruction of the relationship between the two. The results show that the rigid dichotomy between jus ad bellum and jus in bello is no longer relevant since the boundaries between war and peace are increasingly blurred. Nowadays, the world has experienced more widespread asymmetric warfare, as well as the use of modern super weapons. The dichotomy is also considered very eurocentrism and creates a paradox in international law. On the other hand, both have disproportionate use of force against the law and are not justified by military necessity. The reconstruction of the relationship between jus ad bellum and jus in bello must be dynamic, holistic, and harmonious. There should not be a rigid dichotomy, nor a rigid integration, which always places jus ad bellum above jus in bello or vice versa. Reconstruction of the relationship between the two must be based on the principle that a just war must be carried out in a just manner.DOI: https://doi.org/10.22304/pjih.v9n2.a4
Job Termination and Social Security of Migrant Workers in Malaysia During Covid-19 Pandemic Saidatul Nadia Abd Aziz; Salawati Mat Basir; Moganasundari Mahalingam
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

Migrant workers are the most vulnerable groups during the Covid-19 outbreak. The study aims to discuss the current legal framework governing migrant workers in Malaysia during the Covid-19 Pandemic. The discussion covers the effect of the Covid-19 Pandemic on migrant workers focusing on job termination and access to social security protection. It also makes recommendations on policy guidelines to ensure migrant worker’s safety against job termination and zero access to social security during the Covid-19 Pandemic. The study employed a doctrinal approach. It used primary and secondary data that included desktop research, with a particular emphasis on journals, documents, and official reports. Policymakers tended to neglect migrant workers during the pandemic because the migrant workers had less access to adequate security, particularly in terms of job termination and living conditions. The Covid-19 pandemic and the Movement Control Order imposed in Malaysia have affected migrant workers in various ways. It puts workers who are unable to work and who want to work in vital services in jeopardy. In conclusion, a national approach policy is impractical for migrant workers because the workers are short of access to social security and urgent assistance.DOI: https://doi.org/10.22304/pjih.v9n3.a1
The Protection of Spiritual Rights in the Sharia Banking Dispute Settlement: Overview of the Sharia Banking Law in Indonesia Amirizal Bustamin; Arini Azka Muthia; Sonia Ivana Barus
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

 The status of Islamic banking in dispute settlement is normatively a positive legal subject to Islamic law principles. The Financial Services Authority confirms that many conflicts involve Islamic banks and their customers. The problem of the legal and economic context of Islamic banking is more complex, considering the operational concept of Islamic banks is different from conventional banking. Islamic banking must operate based on sharia, including in dispute resolution issues. Spiritual rights are one of the interests of Islamic banking customers that require attention. This study investigates the protection of spiritual rights in the sharia banking dispute settlement based on the perspective of Indonesian sharia banking law. This study employed normative qualitative research methods on primary data, such as the sharia banking law, the consumer protection act, and the dispute resolution act. It found that Indonesia has laws to address sharia banking disputes based on Islamic principles. However, they have not been appropriately implemented. The authority of religious courts to settle disputes on sharia banking has not been effective in protecting spiritual rights because there are still processes of settlement on sharia banking through the general courts. It indicates that stakeholders’ understanding of spiritual rights is still limited.DOI: https://doi.org/10.22304/pjih.v9n3.a5
Legal Formulation to Overcome Base-Erosion and Profit-Shifting Practices of Digital-Economy Multinational Enterprise in Indonesia Russel Butarbutar
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

This study discusses Indonesian legal strategies and formulations to handle tax avoidance originating from Base Erosion Profit Shifting (BEPS) carried out by the digital-economy multinational enterprise. It is a normative (doctrinal) study supported by non-doctrinal methods to reveal the truth based on the logic of legal scholarship. It also compared the practices to the tax provisions, legislation, and cases in India, the United Kingdom, Australia, and Malaysia. At least two theories underlie the study. The first is the legal theory of justice, certainty, and expediency from Gustav Radbruch. The second is the theory of international cooperation. The study found several points. First, multinational enterprise strategies avoid tax by means of Permanent Establishment techniques in low-tax jurisdictions, transfer pricing, and tax treaty shopping. Second, to tackle the multinational enterprise that conducts BEPS in the field of the digital economy, (1) all countries have developed and amended laws and regulations related to e-commerce taxation and the digital economy; and (2) all countries carry out international cooperation, both bilaterally and multilaterally through tax treaties, MLI, and CbC reporting. DOI: https://doi.org/10.22304/pjih.v9n3.a2
The Implementation of the Going Concern Principle in Bankruptcy and The Suspension of Payment to Protect the Economic Rights of the Parties Elisatris Gultom; Huta Disyon
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

This study aims to analyze the regulation on the going concern principle and indicators to determine the continuity of prospective business activity. It employed normative juridical method that was based on library research. It obtained secondary data sourced from primary, secondary, and tertiary legal materials. The study was analytical descriptive because the author described the going concern principle by referring to the Law Number 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligations (the Bankruptcy Law). subsequently, the study analyzed it to find relevant indicators to determine whether a prospective business activity can continue or not. The data were analyzed using a qualitative juridical method. The results indicate that the sustainability of the debtor’s business is crucial for the fulfillment of the economic rights of the debtor and creditor, even though the law does not provide indicators to determine that the prospective debtor’s business will continue. For this reason, decisions regarding the business continuity of debtors are influenced by various internal and external factors and must be made by competent parties.DOI: https://doi.org/10.22304/pjih.v9n3.a3
Human Genetic Engineering: Should Indonesia Regulate It? Hari Sutra Disemadi
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

Human genetic engineering raises pros and cons. Despite the potential to contribute to the health sector, it can cause several problems. While, in theory, it goes against nature and against other conservative beliefs, human genetic engineering gains important support from Transhumanism—a philosophy promoting the scientific evolution of the human race. This study determines the relevancy regulation of human genetic engineering on a global scope and how it affects the prospects of regulating human genetic engineering in Indonesia. The study aims to provide consideration for Indonesia in determining the legality status of human genetic engineering, through analyses of legal constructions surrounding it. The study used a comparative legal research method, using laws and legislations as the focal point to compare the legal frameworks of Indonesia and other countries. It employed secondary data and applied the qualitative method. The study reveals that some countries have already regulated the issue based on the benefits and risks, laying out the boundaries and restrictions on the issue. Indonesia has not established any regulation or showed specific interest in regulating human genetic engineering. The regulation on human genetic engineering is very important because many institutions are now increasingly carrying out human genetic engineering; and many countries oversee it. This importance is based on the theory of legal progressivity, which states that the law exists for human and not the other way around. It implies the necessity of adding progressive moves into the existing legal framework to adapt to the changes and developments in society.DOI: https://doi.org/10.22304/pjih.v9n3.a4
Lack of Protection for Whistleblowers at the Workplace in Nigeria: Drawing Lessons from Selected Jurisdictions David Tarh-Akong Eyongndi; Faith Nwayemogho Opara
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

The Nigerian government has created anti-corruption agencies, such as the Economic and Financial Crimes Commission and the Independent Corrupt Practices and other related offences Commission (ICPC), to contend with corruption. In 2015, the Federal Ministry of Finance introduced the whistleblowing policy. The policy enables corrupt practices in any workplace, either private or public, to be exposed. However, following the policy, there is no legal framework for the implementation nor protection of the whistleblower. This article adopts doctrinal and comparative methodology to examine the utilitarian values and the propriety of whistleblowing vis-à-vis the employee’s obligation to act in good faith under Nigeria’s labor jurisprudence. It relies on primary and secondary data. It discusses the challenges confronting whistleblowing at the workplace in Nigeria. It also examines the practice in Britain, India, South Africa, and Ghana to be compared with Nigeria. It reveals that whistleblowing is an effective tool to combat corruption/malpractices in the workplace. Unlike in Britain, India, South Africa, and Ghana, there is no specific legislation on whistleblowing in Nigeria. It recommends awareness on the need of Nigerians’ active participation in whistleblowing and enactment of a subject-specific law to protect whistleblowing and whistleblowers as in ones in Britain, India, South Africa, and Ghana.DOI: https://doi.org/10.22304/pjih.v9n3.a7
WTO Trade War Resolution for Japan's Chemical Export Restrictions to South Korea Yordan Gunawan; M Fabian Akbar; Eva Ferrer Corral
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 9, No 3 (2022): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

The research analyses the trade war between South Korea and Japan from the perspective of international law. The trade war involving South Korea and Japan was triggered by a decision by the Supreme Court of South Korea which ordered several Japanese companies to pay compensation to victims of Japanese forced labor during World War II. As a result, on July 1, 2019, Japan imposed restrictions on chemical exports to South Korea. South Korea accused Japan of violating international trade regulations concerning export restrictions. Therefore, South Korea took action by boycotting goods from Japan. The two countries resolved to remove each other from the whitelist of countries that obtain preferential trade status via their activities. The research method used is normative legal research with a case approach. The result shows that the trade war involving Japan and South Korea worsened bilateral relations. The World Trade Organization (WTO) carried out several mechanisms related to solving the problem, namely through consultation and conciliation involving the two countries, but it still needs to resolve the issue. It was also planned to establish a panel between South Korea and Japan by the WTO, but it has not been implemented until now and beyond the timeframe set by the WTO in establishing the Panel. Therefore, the study proposes that South Korea and Japan can initiate arbitration as a solution for another effort to resolve the problem because the arbitration mechanism obtains binding and final decisions.DOI: https://doi.org/10.22304/pjih.v9n3.a6
The Possibility of the Implementation of Fast-Track Legislation in Indonesia Rosita Miladmahesi; Wicipto Setiadi; Diani Sadiawati; Handar Subhandi Bakhtiar
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

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Abstract

The idea of the implementation of fast-track legislation in Indonesia has been widely discussed lately. It is triggered by the absence of definitive provisions regarding the period for the formation of law. This study examined concept and mechanism of fast-track legislation in some states; and compared them to Indonesia. It projected the idea of implementing fast-track legislation in Indonesia. The study used conceptual and comparative methods related to the mechanism of fast-track legislation. The analysis was performed qualitatively to produce conclusions related to the implementation of fast-track legislation in Indonesia. There are various methods of fast-track legislation around the world based on regulatory features, indicators, bill proposers, subjects, legalizations, and supervisions over the law generated from the fast-track legislation. Sometimes, law is generated quickly, and, on other occasions, it takes a long time, regardless of the material content, the urgency, and the implications. Indonesia needs clear benchmarks for law process completion. Unfortunately, the idea cannot be implemented immediately because a fast-track legislation mechanism must go together with an in-depth study, which covers several substantial changes in the Indonesian legal system in terms of law, institutions, and supporting instruments.DOI: https://doi.org/10.22304/pjih.v10n1.a6

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