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INDONESIA
Sriwijaya Law Review
Published by Universitas Sriwijaya
ISSN : -     EISSN : -     DOI : -
Core Subject : Science, Social,
Decision Sciences, Operations Research & Management Law, Crime, Criminology & Criminal Justice
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
Arjuna Subject : -
Articles 176 Documents
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Abuse of Rights by Majority Shareholders in Indonesian Family-Owned Company: Is It Likely? Fiona Priscilia Kohar; Yetty Komalasari Dewi
Sriwijaya Law Review Volume 5 Issue 1, January 2021
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol5.Iss1.887.pp29-41

Abstract

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.
Potential Investor Claims and Possible State Defences During the Covid-19 Emergency Sefriani Sefriani; Seguito Monteiro
Sriwijaya Law Review Volume 5 Issue 2, July 2021
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol5.Iss2.1067.pp236-246

Abstract

Since it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the principles of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in international investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective action to avoid a surge of investor-state Arbitration. Governments’ policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination requirements.
Foreign Migrants Trespassing in Sabah Forest Reserves: A Legal Discourse Rohani Abdul Rahim; Muhammad Afiq Ahmad Tajuddin; Rovina Intung; Azizah Landa; Herlina Makanah
Sriwijaya Law Review Volume 5 Issue 1, January 2021
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol5.Iss1.977.pp101-115

Abstract

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.
Philosophy to Strengthen Baitul Maal wat Tamwil Law in Indonesia Erisa Ardika Prasada; Joni Emirzon; KN. Sofyan Hasan
Sriwijaya Law Review Volume 4 Issue 2, July 2020
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol4.Iss2.418.pp270-284

Abstract

Baitul Maal wat Tamwil (BMT) is a non bank financial institution that operates based on sharia principles. As an alternative financial institution, BMT can support the acceleration of national economic growth, but BMT was established and developed with a gradual process of legal legality. BMT status is determined by the number of assets owned, the BMT has a different legal status according to the stages of the number of assets, and is subject to various and partial laws in accordance with the stage of legal status. The purpose of writing is to explain the philosophical basis of the need for legal entities and the formulation of legal norms of BMT as a legal strengthening of populist economic institutions in Indonesia. This type of legal research is normative legal research on legal principles and legal systematics. Based on the discussion it was concluded that the philosophical basis of the need for legal entities and the formulation of legal norms regarding BMT in Indonesia as a legal strengthening is for legal certainty so that can provide recognition, protection, and facilities for the development and benefits of BMTs for micro and small entrepreneurs who do not receive financing services from bank financial institution.
The Problematics of Management Personal Protection Equipment Waste related to Covid-19 in Indonesia Muhammad Hadin Muhjad; Fakhruddin Razy; Ahmad Fikri Hadin
Sriwijaya Law Review Volume 5 Issue 2, July 2021
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol5.Iss2.1161.pp300-308

Abstract

Medical Waste for Covid-19 Personal Protective Equipment (PPE) is classified as B3, which can potentially be a medium for spreading the virus. Therefore, management must be carried out, consisting of collection, sorting, transportation, temporary storage, to processing (destruction) based on the Circular of the Minister of Environment and Forestry Number 2 of 2020 using the incinerator and problematic autoclave methods. The purpose of this study is to find out how the law regulates the management of Covid-19 PPE waste in Indonesia and how it should be. The research method used is normative legal research. The results showed that based on the Circular Letter of the Minister of LHK No. 2 of 2020, it is determined that the destruction of Covid-19 PPE waste as B3 waste must go through an incinerator facility with a minimum combustion temperature of 800⁰ C and an autoclave equipped with a shredder. This method is considered overkill and incurs high costs. The conclusion of this study is to provide input for the Government to review or revise the Circular regarding safer Covid-19 PPE B3 waste management, including through the pyrolysis method.
The Criticism of Land Procurement Law to Improve Landowners Welfare in Indonesia Fifik Wiryani; Mokhammad Najih
Sriwijaya Law Review Volume 5 Issue 2, July 2021
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol5.Iss2.1073.pp175-191

Abstract

This study is to conduct a juridical analysis of the implications of Law No. 2 of 2012 on Land Procurement for Development for the Public Interest to improve the welfare of landowners after the release of land rights. The focus of the study is on the arrangement of indemnity from the aspects: assessors, indemnity assessment, and deliberation on the determination of indemnity. The research approach uses normative juridical, with secondary data sourced from primary legal materials and secondary legal materials from March to July 2020. The data was analysed using content analysis combined with prescriptive analysis. As a result, this research proposes the arrangement of compensation in the Law on Land Procurement for the Development of the Public Interest. These arrangements are included the material determination of assessors, the value of compensation, deliberationof the determination of compensation, and the custody of compensation (consignment) in the Law on Land Procurement which is inconsistent with the principles and principles of land procurement that should be as the basis and guidelines for the formulation of norms.
The Establishing Paradigm of Dominus Litis Principle in Indonesian Administrative Justice Soehartono Soehartono; Kukuh Tejomurti; Arsyad Aldyan; Rachma Indriyani
Sriwijaya Law Review Volume 5 Issue 1, January 2021
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol5.Iss1.877.pp42-55

Abstract

This study aimed to analyse a shifting paradigm of Dominus Litis (judge activeness) in the Indonesian state administrative justice. This principle emphasises that judges expand the paradigm that judges are not limited to being used in processes regulated in law. However, judges need to actively develop the paradigm to make legal discoveries oriented towards substantive justice and expand the paradigm from merely resolving disputes positivistically to resolving conflicts with paradigms. Legal realism and sociological jurisprudence to create substantive justice. This paper uses the normative research method, with a statutory approach and case approach by analysing two decisions of state administrative court judges. The result showed that Dominus Litis in the dispute's accomplishment is not limited to the implementation of juridical-legal positivism factors, but on how judges use their mindset to provide ideal decisions and conduct legal reasoning use socio-legal and socio-cultural paradigms. The development of demands for justice has also experienced a paradigm shift of justice. It requires the principle of an active judge who always follows developments in public policy, such as the principle of sustainable development related to environmental and natural resource issues, and finding the legal material truth.
Exercising No Harm Rule: Claims for Damage and Loss Due Climate Change Effects Mada Apriandi Zuhir; Febrian Febrian; Murzal Murzal; Ridwan Ridwan
Sriwijaya Law Review Volume 6 Issue 1, January 2022
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol6.Iss1.1646.pp174-188

Abstract

The act of utilising all the resources owned by a state, including natural resources, is the right of every state. However, its use is prohibited if it causes harm to other states. This is then referred to as the principle of no harm rule in international law. Therefore, each state is responsible not for causing damage to other States' environments or areas outside the limits of its jurisdiction. This article will analyse the development of the no harm rules and its application model for claiming state responsibility. As normative research, it used secondary data as the main data, and the primary, secondary and tertiary legal materials were analysed qualitatively. In discussion, this principle has long existed as customary international law to mitigate transboundary pollution. In the case of the environment in general, many studies have applied this principle. However, due to the uniqueness of the climate change issue, evidence and proof of the impacts caused cannot be used as the basis for a lawsuit like ordinary environmental cases. Based on the discussion and simulation conducted, it is concluded that the no harm rules principle can be applied to climate change issues. However, this principle is not satisfactory and has limitations in its application.
Regulatory Support for Biosequestration Projects in Australia: A Useful Model for Transition to Net-Zero Emissions? Steven Geroe
Sriwijaya Law Review Volume 6 Issue 1, January 2022
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol6.Iss1.1510.pp1-23

Abstract

This paper considers the effectiveness of Australian regulatory measures to support storing atmospheric carbon in plants and organic matter in soils (biosequestration),  a central element of the Australian greenhouse gas (GHG) emission policy through the Emissions Reduction Fund (ERF). Eligible methodologies under the ERF are broader than those in other jurisdictions. Hence Australian experience may have international application. The functionality of Australian regulation to achieve GHG emissions reduction is considered, focusing on provisions relating to additionality, permanence, monitoring, reporting and verification of emissions bio-sequestration. This analysis is conducted by reviewing key publications by research organisations, academics, government departments, industry organisations, environmental organisations and private sector consultancies. While the integrity of Australian biosequestration offsets is generally well regarded, persistent issues have been identified with regard to the additionality of avoided deforestation methane capture in intensive agriculture and landfill gas projects. The proportion of Australian emissions represented by existing biosequestration offset projects is deficient. These issues must be addressed in order to scale up biosequestration projects as an effective element of Australia's net-zero emissions strategy. It can best be achieved by tightening Safeguard Mechanism baselines to drive demand for carbon credits and funding the Clean Energy Regulator to implement effective, independent MRV. Ongoing regulatory reform will be necessary to address such issues as they arise in the course of the implementation of specific methodologies. Nonetheless, ongoing emissions risks relating to biosequestration and other offset projects can only be adequately addressed by complementary policy to reduce emissions at the source.
The Rationalization of Debt Discharge Policy for Individual Debtors in Indonesian Bankruptcy Regime Robert Robert; Rosa Agustina; Bismar Nasution
Sriwijaya Law Review Volume 6 Issue 1, January 2022
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol6.Iss1.928.pp101-121

Abstract

The Indonesian bankruptcy regime tends to be harsh to the debtors, especially the individual debtors. In contrast, the creditors possess the right to pursue the debtor’s outstanding debts even after the bankruptcy process. For that reason, this article aims to argue why it is rational for the Indonesian government to implement a debt discharge policy in the Indonesian bankruptcy regime. This article employs a normative research method, using a conceptual and comparative approach. The result of this study is based on the debtor cooperation theory and the humanitarian theory of debt discharge. Hence, it is rational for the Indonesian government to implement a debt discharge policy for individual debtors. The first and second Sila of Pancasila is also in line with these theories. Consequently, as a member of society, the individual debtor should be treated with dignity and humane values, which includes debt forgiveness. Nevertheless, not every debtor is deserves to be discharged from his debts. Therefore, it is rational for the Indonesian government to implement the debt discharge policy in the amendment of Indonesian bankruptcy law to protect the honest but unfortunate individual debtors.

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