Articles
518 Documents
<![CDATA[The European Union Charter of Fundamental Rights: Strengthening the Participation in the European Union ]]>
<![CDATA[Adnan Mahmutovic]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[This study employed legal and political analysis to assess the significance of the European Union Charter of Fundamental Rights to strengthen the democratic legitimacy of the European Union. There is a lack of comprehensive analysis of the contribution of the European Union Charter of Fundamental Rights to enhance the democratic legitimacy of the European Union. Therefore, this study tried to address the gap by focusing on specific provisions of the Charter that are designed to promote participatory democracy and to foster a closer relationship between the citizens and the European Union. The study also explored the legal challenges and complexities surrounding the interpretation, application, and balance of fundamental rights in the European Union, especially considering recent verdicts of national constitutional courts and their implications for the role of the European Court of Justice. The study aims to identify potential benefits of the Charter, such as improving the relationship between the EU and its citizens and strengthening the European Union’s legal system and legitimacy by safeguarding citizens’ fundamental rights.DOI: https://doi.org/10.22304/pjih.v10n1.a2 ]]>
<![CDATA[Principle of Neutrality and the Obligation to Prevent International Humanitarian Law Violations: A Case Study of US Military Assistance in Russia-Ukraine War ]]>
<![CDATA[Gregory Joshua Manogar]]>;
<![CDATA[Diajeng Wulan Christianti]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[Although international law forbids states to use force against each other, every state has an obligation to stop the ongoing violation of international humanitarian law. Consequently, the relevance of the traditional law of neutrality is questionable and often considered obsolete in contemporary armed conflict. The United States of America introduced the doctrine of qualified neutrality. The doctrine allows other states to do something when there is a threat or ongoing violations of the peace and security of humankind. The United States has commonly justified its military assistance to one of the warring parties using the doctrine as in the current Russia-Ukraine War. The United States provides vast military assistance to Ukraine, consisting of weapons and specialized military training to stop Russian aggression. This study aims to assess the qualified neutrality doctrine from an international law perspective and whether the United States can still preserve its neutral status or become a co-belligerent of Ukraine. This study argues that qualified neutrality will not change the status of a neutral state into co-belligerent if it does not involve any use of force measures or, otherwise, these measures shall fall within the framework of the UN Charter and require authorization from the UN.DOI: https://doi.org/10.22304/pjih.v10n1.a5]]>
<![CDATA[Identifying the Use of Smart Enforcement in Citarum River Environmental Law Enforcement ]]>
<![CDATA[Nadia Astriani]]>;
<![CDATA[Andri Gunawan Wibisana]]>;
<![CDATA[Anindrya Nastiti]]>;
<![CDATA[An Nissa Ayu Mutia]]>;
<![CDATA[Hajriyanti Nuraini]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[The Citarum River is one of the most strategic rivers in West Java Province, Indonesia. It has been a major water supplier for various agricultural and industrial needs. Unfortunately, human activity increases around the watershed. Thus, the water quality of the river decreases due to pollution. The central and regional governments launched the Citarum Harum program to reduce pollution in the Citarum River. One of the main issues of the program is related to environmental law enforcement. A lengthy process, high case costs, and light sanctions make law enforcement through the courts ineffective. This study discusses whether the environmental law enforcement in the Citarum River is smart enforcement. The study used normative empirical legal analysis with a juridical approach. This study concludes that the government should plan the law enforcement by means of Smart Enforcement strategy to make the enforcement more effective and efficient. It will provide clearer directions to law enforcement officers in the law enforcement. In addition, the efforts to carry out effective and efficient environmental law enforcement need more human and financial resources.DOI: https://doi.org/10.22304/pjih.v10n1.a3 ]]>
<![CDATA[Sexual-Violence Offenses in Indonesia: Analysis of the Criminal Policy in the Law Number 12 of 2022 ]]>
<![CDATA[Topo Santoso]]>;
<![CDATA[Hariman Satria]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[In 2022, Indonesia enacted the Law on Sexual Violence Offenses. The Law criminalizes ten acts of sexual violence and categorizes them as criminal offenses. The Law aims to prevent criminal offenses of sexual violence through deterrence, coordination, and monitoring by central and regional law enforcement agencies. The Law adopts both sanctions and treatment in the matter of criminal sanctions. The Law distinguishes types of punishment based on principal and additional penalties, including against corporations. Based on the severity of the penalty, the Law includes indefinite and definite sentences. However, the Law remains weak on restitution that should be action sanctions rather than criminal sanctions and lack of corporate criminal liability regulation. The severity of the penalty that was adopted by the Law should be in the form of indefinite sentences to provide the maximum deterrent effect. In addition, there is a lack of synchronization between the Law and other laws, including the Laws on Human Trafficking, Pornography, and the Elimination of Domestic Violence.DOI: https://doi.org/10.22304/pjih.v10n1.a4]]>
<![CDATA[An Evaluation of the Selection Mechanism of Constitutional Judges in Indonesia and South Korea ]]>
<![CDATA[Iwan Satriawan]]>;
<![CDATA[Seokmin Lee]]>;
<![CDATA[Septi Nur Wijayanti]]>;
<![CDATA[Beni Hidayat]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[This paper aims to evaluate the appointment process of Constitutional Court Judges in Indonesia. A guarantee of the judiciary independence is a foundation of a modern democratic state because a judge’s appointment depends on a selection process. Using normative and empirical legal study, the study shows that Indonesia does not have a standardized selection process among the proposing organs regarding assessment and procedure. The selection mechanism is decentralized. It relies on the proposing organs respectively. On the other hand, South Korea has a more standardized selection process, especially on confirmation hearings organized by the National Assembly. The Korean model, which emphasizes the National Assembly confirmation hearing, has strongly contributed to the selection process because it ensures transparency and accountability. The study suggests that Indonesia should seriously consider establishing a confirmation hearing system for justices like South Korea. A more transparent selection will reduce the number of corrupt public officials (justices). Unfortunately, the current Korean system also needs improvements. The suggestions include (1) separation of the ethical and professional competence evaluation phase, (2) extension of the confirmation hearing duration, (3) enhancing the requirement for witness attendance and submission of data, and (4) prohibition of the use of personal hearing data. DOI: https://doi.org/10.22304/pjih.v10n1.a7]]>
<![CDATA[The Renewal Policy of the Adultery Concept in Article 411 of the Law Number 1 of 2023 on the Indonesian Criminal Code ]]>
<![CDATA[Mas Putra Zenno Januarsyah]]>;
<![CDATA[Dwidja Priyatno]]>;
<![CDATA[Somawijaya Somawijaya]]>;
<![CDATA[Widiada Gunakaya]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 1 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[At present, Indonesia needs to update the Indonesian Criminal Code to replace the Dutch Colonial Criminal Code that still exists. The jurists, especially criminal law experts, have been involved in a lengthy debate on overhauling, reformulating, revising, and even reforming the Criminal Code to align with Indonesian values. This study aims to determine the foundation of the policy to expand the concept of adultery and the values protected by the expansion contained in Article 411 of Law Number 1 of 2023 on the Criminal Code. This study was a descriptive study that used a normative juridical approach. The data collection techniques employed secondary data with a study of documents. The data were analyzed with qualitative methods. The result shows that the foundation of the expansion policy is the perspective of criminal policy. The formulation of the adultery offense in Article 284 of the Criminal Code is a problematic policy because it is not in accordance with the values of the Indonesian people. The formulation of the article only convicts the offenders who are committed in marriage. The provision does not require punishment to unmarried convicts. The arrangements for adultery offenses that are still in effect today are not based on a view of life. They do not reflect the social structure of the Indonesian people with the characteristics of kinship, groups, and beliefs. On the other hand, Article 411 of Law Number 1 of 2023 on the Criminal Code expands the concept of adultery to protect the religious and moral values closely related to Pancasila.DOI: https://doi.org/10.22304/pjih.v10n1.a1]]>
<![CDATA[A Proposal to Adopt Concrete Judicial Review in Indonesian Constitutional Court: A Study on the German Federal Constitutional Court Experiences ]]>
<![CDATA[Tanto Lailam]]>;
<![CDATA[M. Lutfi Chakim]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 2 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[The study aims to propose an adoption to concrete judicial review in Indonesian Constitutional Court based on the experiences of the German Federal Constitutional Court. It was motivated by the weak protection of citizen’s constitutional rights in ordinary court; and the absence of concrete judicial review authority at the Indonesian Constitutional Court. This study used doctrinal legal research method with legal documents or regulations, cases, and comparative analyses. This concrete review confirms the role of judges of ordinary courts in proceeding with the constitutional system, especially in protecting fundamental rights from the legislatures’ law violations based on Articles 93, 94, and 100 of the German Basic Law and the GFCC Act. The Indonesian Constitutional Court needs a concrete review authority in the future and the GFCC is the best judicial reference. There are several constitutional and legal arguments. Constitutional arguments and legal facts explain the necessity of the authority for the Indonesian Constitutional Court. Firstly, there are many cases faced by Indonesian Constitutional Court. Secondly, it can provide solutions for the dualism judicial review problem on conflicted decisions between the Constitutional Court and the Supreme Court. Thirdly, it can strengthen the role of judges in the Supreme Court (general, religious, military, and administrative courts) to generate the obligation to uphold the 1945 Constitution. The proposal through the amendment of the 1945 Constitution is an ideal way to create legal certainty and to strengthen institutions for the protection of fundamental rights in Indonesia.DOI: https://doi.org/10.22304/pjih.v10n2.a1]]>
<![CDATA[The Indonesian President’s Prerogative Rights in the Appointment of Ministers After the Amendment to the 1945 Constitution ]]>
<![CDATA[Isnawati Isnawati]]>;
<![CDATA[Adam Setiawan]]>;
<![CDATA[Fatma Hidayati]]>;
<![CDATA[Rezky Robiatul Aisyiah Ismail]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 2 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[The president possesses the prerogative right to appoint and dismiss his government personnel without having to seek approval from other branches of power. In practice, the president often does not use the rightfully because of the coalition consequences of the multiparty party system, which also has implications for the practice of appointing ministers and deputy ministers. Therefore, the president is not independent to choose figures for strategic political positions. This study examined the Indonesian president's prerogative right in appointing ministers after the amendment to the 1945 Constitution. This study used doctrinal legal research with statutory regulations, conceptual approaches, and comparative approaches. This study concludes with two points. First, the presidential system is rigid compared to the more flexible parliamentary system. The presidential system also tends to be more prone to causing immobility and deadlock. A multiparty system has implications for inconsistency in governance with a presidential system of government. Second, the combination of a multiparty system has implications for the president's prerogative right not being used effectively. Thus, a reconstruction of the model of minister appointment is required. The appointment should no longer be the absolute authority of the president. The president must involve other institutions that represent the people as a form of checks and balances.DOI: https://doi.org/10.22304/pjih.v10n2.a6]]>
<![CDATA[Theoretical Reconstruction of the ’Existence of the Indonesian Corruption Eradication Commission and Its Comparison to Other Anti-Corruption Agencies in Asia ]]>
<![CDATA[Gunawan A. Tauda]]>;
<![CDATA[Ni'matul Huda]]>;
<![CDATA[Andy Omara]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 2 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[Article 3 of the Indonesian Law Number 19 of 2019 stipulates that the Corruption Eradication Commission is a state institution within the executive power branch, which in carrying out its duties and authorities is independent and free from the influence of any power. The basic arrangement is not without problems, considering the institutional design of the Corruption Eradication Commission was initially stated in the Law Number 30 of 2002 “…a state institution, which in carrying out its duties and authorities is independent…,” becomes “…state institutions within the executive power branch….” The stipulation in Article 3, also the basic article of the law was confirmed by the Constitutional Court in Verdict Number 70/PUU-XVII/2019. This study aims to answer problems of theoretical construction of the commission after the Constitutional Court Verdict Number 70/PUU-XVII/2019. This study used the normative legal research method. The study concluded that, theoretically, there was a shift in the institutional design of the commission, from an independent agency to an independent executive organ, equivalent to the National Police and the Attorney General’s Office of Indonesia. The change is a setback in corruption eradication. Compared to other anti-corruption agencies in Asia, the institutional design is not an ideal condition or best practice. Therefore, legislators should restore the commission as an independent agency.DOI: https://doi.org/10.22304/pjih.v10n2.a2]]>
<![CDATA[A Comparison Between Indonesian and Malaysian Anti-Corruption Laws ]]>
<![CDATA[Tinuk Dwi Cahyani]]>;
<![CDATA[Muhamad Helmi Md Said]]>;
<![CDATA[Muhamad Sayuti Hassan]]>
<![CDATA[ PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Vol 10, No 2 (2023): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Padjadjaran ]]>
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<![CDATA[Corruption is quite a complicated problem. It has made many countries, including Indonesia, to ratify the United Nations Convention Against Corruption (UNCAC). It is an effort to prevent and to eradicate corruption with international cooperation. Unfortunately, several studies have revealed that Indonesia is experiencing a legal vacuum on corruption because Indonesia only adopts a few points of the United Nations Convention Against Corruption in written regulations. The legal vacuum causes difficulties in the resolution of corruption cases. Compared to other countries, the Indonesia Corruption Perceptions Index is still quite high. It leads to some questions that are addressed in this study. First, why does Indonesia not adopt all articles of the United Nations Convention Against Corruption? Second, how are corruption cases in Indonesia managed after the ratification? Third, how is the comparison of the law to the Malaysia law? To answer the questions, this study used a normative method. It employed the analysis of primary and secondary data assisted using the nVivo 12 application. The study revealed that Indonesia cannot ratify all articles because Indonesia needs some adjustments to meet the required proportions before the new laws are passed. After the ratification, Indonesia seems to have better regulations and adequate existing conditions. Lastly, laws or regulations in Malaysia are more dynamic than Indonesia.DOI: https://doi.org/10.22304/pjih.v10n2.a7 ]]>
