Sriwijaya Law Review
The Sriwijaya Law Review known as the SLRev launched on the 31st January 2017 and inaugurated formally by the Rector of the university is a forum which aims to provide a high-quality research and writing related to law. Areas that relevant to the scope of the journal cover: business law, criminal law, constitutional law, administrative law, and international law
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<![CDATA[Resolving Office Establishment Dispute in Nigeria through Alternative Dispute Resolution Mechanism: An Evolving Regime ]]>
<![CDATA[Bosede Remilekun Adeuti]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.826.pp115-129
<![CDATA[This paper examines contemporary issues in Office Establishment Dispute Resolution Mechanism in Nigeria. It explores strategic ways of resolving such office establishment dispute which has remained an intractable problem in Nigeria. The objective is to examine litigation challenges in settlement of this office dispute in Nigeria and other developing countries. This paper argues that adopting Alternative Dispute Resolution Mechanism in Office Establishment Dispute is not only a programmatic goal to be attained in the long term but rather an immediate obligation that is preferable to litigation in the court of law. The doctrinal research methodology will be used to examine the challenges in resolving office establishment dispute through alternative dispute resolution Mechanisms. This paper adopts an analytical and qualitative approach and builds its argument on existing literature works, which are achieved by synthesising ideas. Recommendations and suggestions are made based on research findings. This paper concludes that the era of jettisoning or sacrificing Alternative Dispute Resolution on the altar of inapplicability in resolving office establishment dispute is gone and the need to move with time with the practise which has been in existence in developed countries for decades.]]>
<![CDATA[Sharia Principles in the Financial Services Authority Regulation on Dispute Settlement Alternatives ]]>
<![CDATA[Ro'fah Setyowati]]>;
<![CDATA[Bagya Agung Prabowo]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.864.pp56-70
<![CDATA[There is a legal disharmony with the Sharia Banking Law in the regulation on alternative dispute resolution institutions. This problem arises because the regulation does not pay attention to sharia principles, as mandated by Article 55, Paragraph 3 of the Sharia Banking Law. Meanwhile, the application of sharia principles is a spiritual right of consumers which also requires legal protection. This research is intended to assess alternative dispute resolution institutions' regulations, particularly Financial Services Authority Regulation from a consumer protection perspective, particularly spiritual rights. This research is categorized as an empirical normative study, using a philosophical, historical approach and a content analysis of the Financial Services Authority Regulation. The results of this study indicate that the Financial Services Authority Regulation on Alternative Dispute Resolution Institutions has not accommodated spiritual rights in dispute resolution for the Islamic banking industry. A weak understanding of spiritual rights causes it in the context of dispute resolution. It also creates another problem in the form of a lack of attention and policies that support the protection of spiritual rights, both in regulatory and banking institutions. In the context of dispute resolution, there are general consumer rights, such as the right to get advocacy, while the application of sharia principles is a special right. Based on these findings, it is recommended that regulatory institutions, particularly the Financial Services Authority, pay adequate attention to the entire financial service industry under their respective characteristics. It is an important matter because the protection of spiritual rights supports the development of the Islamic finance industry both in Indonesia and globally.]]>
<![CDATA[Policy Model Reconstruction of Social Forestry ]]>
<![CDATA[Wartiningsih Wartiningsih]]>;
<![CDATA[Nunuk Nuswardani]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.451.pp130-142
<![CDATA[Internationally, there has been a paradigm shift in forest resource management from state-based forest management to community-based forest management. This change has also occurred in Indonesia, namely through the social forestry program as outlined in the the Minister Regulation on Social Forestry and the Minister Regulation on Social Forestry in Perhutani Area. Indeed, these Ministerial Regulations already contain the principles of community-based forest management. However, the implementation still leaves problems. This paper will analyze the procedural weaknesses and inaccuracies in the designation of these Ministerial Regulations. The approach used is the statutory approach and comparison with qualitative analysis. The result shows that it is necessary to change the policy model by changing procedures by re-functioning the role of Forest Management Units as an institution that has the authority to manage forest resources in its area. Besides, the Social Forestry program should only be intended for forest communities who have pioneered forest resource management, whether they have joined the Community Joint Forest Management program or not. However, they must reside around forests managed by Perum Perhutani.]]>
<![CDATA[The Legal Conundrum in the Implementation of the Convention on the Rights of the Child in Nigeria ]]>
<![CDATA[Ibrahim Danjuma]]>;
<![CDATA[Karatu Afabwaje Joel]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.603.pp1-13
<![CDATA[International law or treaty binds a state where such state signed, ratified acceded or domesticated same. In a monist State, ratification alone suffices for the international law or treaty to become binding whereas, in a dualist State, domestication as a condition must have complied. It is because of the peculiarities within various nations' legal systems (Monist or Dualist system). In 1989, The United Nations Convention on the Rights of the Child (UNCRC), an international human rights instrument came into force. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, only about 24 States have enacted the law for onward enforcement. Nigeria is a nation which became independent in the year 1960 comprising now of 36 states and Abuja as its Federal Capital Territory all under the Federal Government. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, many States have enacted the law for onward enforcement. However, few states are yet to comply and raise a question as to whether the said CRC has a binding force in all the States of the Federation. This study aims to examine the extent of how the UNCRC and CRA are being enforced in Nigeria. This study's research methodology is purely doctrinal, where library materials such as books, articles from journals, and online articles have been carefully selected and analyzed for this research. This paper recommends establishing a global agency or organ that should be saddled with the responsibility of ensuring full compliance and enforcement of international laws or treaties.]]>
<![CDATA[Legal Certainty of Cabotage Principle Regarding Sea Transportation in Indonesia ]]>
<![CDATA[Annalisa Y]]>;
<![CDATA[Murzal Murzal]]>;
<![CDATA[Rizka Nurliyantika]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.974.pp71-85
<![CDATA[Shipping between domestic ports must be transported by ships with Indonesian flags and operated by national shipping companies, meaning the cabotage principle. The aim is to prevent and reduce dependence on foreign ships carrying out Indonesia's maritime territory. However, in regulating and implementing the cabotage principle, it is not sure that it can be applied absolutely, which can be interpreted as not reflecting legal certainty. This study aims to analyze the legal certainty of implementation of the cabotage principle in Indonesian territorial waters. This research is a normative study that uses legal, historical, interpretation and case approaches. The case and interpretation approaches are used to examine the cabotage principle concept in legislation and several relevant cases brought to Indonesian courts. The results shows that the regulation of the cabotage principle on sea transportation is found in the form of laws, presidential regulations, presidential instructions and ministerial regulations. However, in other various regulations, the cabotage principle does not apply absolutely (semi-protectionist) or inconsequently. On the one hand, this is because it prohibits foreign ships from operating in Indonesian territory to carry passengers and/or goods between islands or ports. On the other hand, foreign ships are allowed for other activities that do not include carrying passengers and/or goods with certain conditions and approval from the government. The application of the cabotage principle based on judges' considerations in cases submitted to the State Administrative, Supreme and the Constitutional Courts has fulfilled legal certainty according to the Shipping Law. However, the protection of national Shipping must be prioritized, and the use of foreign ships should be considerably tightened unless Indonesian-flagged vessels are not insufficiently available.]]>
<![CDATA[Rethinking Indonesian Legislation on Wildlife Protection: A Comparison between Indonesia and the United States ]]>
<![CDATA[Febrian Febrian]]>;
<![CDATA[Lusi Apriyani]]>;
<![CDATA[Vera Novianti]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.881.pp143-162
<![CDATA[In Indonesia, a crime against wildlife is still not well controlled. Several reasons are the fact that certain wildlife is still considered a threat by the community and the lack of implemented criminal sanctions. This paper compares the application of sanctions to perpetrators of wildlife crimes between Indonesia and America. Based on the Indonesian Law, Article 40(2) of the Law on Conservation of Living Natural Resources and their Ecosystems, a person who commits a crime against individual wild animals can be imprisoned for a maximum of five years and a maximum fine of one hundred million rupiahs. Meanwhile, the United States Law, the Endangered Species Act (ESA), charges wildlife criminals with criminal and civil penalties. In § 1540(a)(1) it provides that anyone who takes, imports, exports, transports or sells endangered species can be fined not more than $ 25,000. If the species is threatened in the group, the offender can be subject to a sentence of not more than $ 12,000. Also, additional criminal sanctions were imposed to revoke federal licenses, lease permits and hunting permits. This study aims to analyse criminal sanctions' enforcement in criminal cases against protected animals in courts in Indonesia and the United States to find best practices using normative legal research methods. The results show that the criminal sanctions against wildlife crimes in Indonesia have never reached the maximum sentence so that it is not sufficient to provide a deterrent effect for the perpetrators. Unlike in America, the imprisonment sanction for criminal sanctions for protected animals is still relatively weak, but fines and civil sanctions can be maximally applied.]]>
<![CDATA[Legal Analysis of Current Indonesia's Marine Protected Areas Development ]]>
<![CDATA[Adrian Nugraha]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.851.pp14-28
<![CDATA[This paper aims to conduct a legal analysis of the development of Marine Protected Areas (MPAs) in Indonesia. This article discusses the international legal framework and national legislation related to MPAs, progress and control, and problems in developing MPAs in Indonesia and its solutions. The international legal frameworks discussed include the United Nations Convention on the Law of the Sea 1982, the Convention on Biological Diversity 1992, and Code of Conduct for Responsible Fisheries 1995. Subsequently, the Indonesian legislation analyzed includes the Act on Conservation of Living Resources and their Ecosystems, the Act concerning Fisheries, the Act concerning the Management of Coastal Areas and Small Islands, and the Act on Marine Affairs. The progress and control of the establishment of MPAs in Indonesia have now reached the target area of more than twenty million hectares. Apart from the success of these achievements, Indonesia also has problems in developing MPAs. Current problems related to MPA development include dualism of permits, conflicts over zoning and regional spatial planning, multiple interpretations of penal sanctions, and overlapping management authorities between government agencies. The solutions offered to solve these problems include synchronizing marine tourism permits, integrating zoning and spatial plans into one regional government regulation, imposing the most severe criminal sanctions for perpetrators of destroying marine ecosystems, and transfer of full authority over the management of seven marine protected areas to the Ministry of Marine Affairs and Fisheries.]]>
<![CDATA[Does Religious Holiday Allowance Policy during Covid-19 Provide Legal Certainty? ]]>
<![CDATA[Aries Harianto]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.673.pp86-100
<![CDATA[The Circular Letter of the Minister of Manpower No. M/6/HI.00.01/V/2020 concerning the Implementation of Religious Holiday Allowance Payment (THR) of 2020 in Companies during Covid-19 Pandemic is a regulation expected to complete THR payment problems in this Pandemic situation. However, normatively, this regulation raises new legal issues. This regulation's provisions contradict the principle of legal certainty because it contradicts the laws and regulations above it. Under the juridical normative type of research, the results of this research found the emergence of legal consequences due to industrial relations disputes for employment relations actors if the agreement on THR Payment is not achieved. This research has also found that the Minister Circular Letter on THR Payment basically contradicted the principle of legal certainty because the status does not belong to the statutory regulations, meaning that it has no force to be applied as statutory regulations do. Based on the Statutory regulation, the minister Circular Letter's legal status only applies to internal institutions which issue and belongs to technical and administrative arrangements. Thus, legal action as research result recommended to the government is revoking the minister's circular letter on THR Payment.]]>
<![CDATA[Abuse of Rights by Majority Shareholders in Indonesian Family-Owned Company: Is It Likely? ]]>
<![CDATA[Fiona Priscilia Kohar]]>;
<![CDATA[Yetty Komalasari Dewi]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.887.pp29-41
<![CDATA[The familial relations entwining the ownership and management of a family-owned company creates a significant opportunity for majority shareholders to exercise their rights to others' detriment. Various jurisdictions have addressed such issue by projecting the concept of abuse of rights by majority shareholders (abus de majorité). The concept aims to detect which behaviour could be considered an abuse and provide legal protection for minority shareholders and companies. In Indonesia, however, such a concept has not been explicitly adopted nor discussed at length. This work examines what behaviour which could be considered as a form of abuse of rights by majority shareholders under the Indonesian company law, and how the protection and practice of Indonesian private company law against such behaviour. This work is a normative legal research using conceptual, comparison, statutory, and case-law approaches. The comparison and case-law approaches will be utilized to examine the universal concept of majority shareholders abuse of rights by examining the adoption of the concept in various jurisdictions and examine several relevant cases brought to the Indonesian court. As a result, it concludes that there are still problems surrounding the legal measures available, as this behaviour is still prevalent, especially in Indonesia's family-owned companies. Hence, more stringent rules are needed to protect minority shareholders and the Indonesian Company's interests effectively.]]>
<![CDATA[Foreign Migrants Trespassing in Sabah Forest Reserves: A Legal Discourse ]]>
<![CDATA[Rohani Abdul Rahim]]>;
<![CDATA[Muhammad Afiq Ahmad Tajuddin]]>;
<![CDATA[Rovina Intung]]>;
<![CDATA[Azizah Landa]]>;
<![CDATA[Herlina Makanah]]>
<![CDATA[ Sriwijaya Law Review Volume 5 Issue 1, January 2021 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol5.Iss1.977.pp101-115
<![CDATA[According to Sabah Forestry Enactment 1968, Yang di-Pertua Negeri Sabah is given the power to reserves forests for various purposes including commercial, protection, domestic and others. Sabah Forestry Department is entrusted with proper and efficient planning, and implementation of State forest resources management (SFM) to comply with the sustainable forest principles. It achieves to manage forest resources towards sustainable and profitable forest governance. However, Sabah forest reserves were threatened by illegal trespassing by foreign migrants to possess forest produce unlawfully and to occupy State land illegally. This article aims to expose the causes of the invasion of forest reserves by foreign migrants, the offences committed by foreign migrant activities in the forest reserves, violation of specific legislation such as the Immigration Act 1959/63 and the Forest Enactment 1968. The qualitative legal research methodology was used to understand the issues at hand, the existing applicable laws and the legal implications for such illegal activities in these forest reserves. Secondary data found in the legislation, journals, annual report, and law publication were collected, reviewed, analysed, and discussed to understand its legal implications better. Thus, efforts to expose these illegal activities by foreign migrants is essential to ensure Sabah Forest Reserves can continuously be maintained and not destroyed at the hand of illegal foreign trespassers. Employers should also be made responsible for their involvement in trafficked or smuggled illegal migrants as workers and simultaneously, conduct illegal activities to deceit the State Forestry efforts and developmental planning in Sabah.]]>
