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WAHID FATHONI
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INDONESIA
Indonesian Comparative Law Review
Published by Universitas Muhammadiyah Yogyakarta
ISSN : 26552353     EISSN : 26556545     DOI : 10.18196/iclr
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Indonesian Comparative Law Review (ICLR) (ISSN: 2655-2353, E-ISSN:2655-6545 is a periodical scientific-journal published by the Faculty of Law, Universitas Muhammadiyah Yogyakarta in collaboration with the Indonesian Association of Comparative Laws. The journal will be published twice a year in December and June. ICLR’s vision is to be a leading scientific journal in comparative law. ICLR has a unique approach in creating innovative discourse on harmonization among legal systems. ICLR will receive many articles from legal scholars from reputable universities worldwide.
Arjuna Subject : Umum - Umum
Articles 77 Documents
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Comparative Law in Asia: The Case for Intra-Asia Intensification Shuaib, Farid Sufian
Indonesian Comparative Law Review Vol 1, No 1: December 2018
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.1101

Abstract

I would like to thank the organiser for inviting me to participate in this important conference – the ASIAN Conference on Comparative Law 2018 – with the theme “Comparative law and Legal Culture in Asia”. This conference is certainly timely considering what is happening around us on the world stage. One inference that we could make from Brexit (namely the success of the referendum for United Kingdom to leave the European Union) and the support received by the far right populist political parties in Europe, (such as the National Front in France) is that nationalism is on the rise. Of course, nationalism helps the creation of states in the first place and thus is not necessarily a terrible thing. Moreover, nationalism could be used to harness unity and cohesiveness in a nation in order to be a developed country, so that the agenda for development could be executed and achieved. However, the language of nationalism that one could hear from some parts of the world is about superiority and exclusion. Thus, a conference on Comparative Law is nothing but timely.
The Laws in Medical Futility: A Comparative Study between the Malaysian, English, American, Indonesian, and Islamic Law Baharudin, Syaheera Aina
Indonesian Comparative Law Review Vol 2, No 2: June 2020
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.2221

Abstract

Medical futility has always been a huge blow to the medical world. While medical practitioners live to save others’ lives, some cases may not be as kind to their honorable intentions. The problems that were posed by medical futility had always spark issues of morality, ethics and laws. The paper aims to address the laws governing any medical practitioner’s actions towards medical futility which is likely to result in the death of the patient. It will look into the current laws of four nations namely Malaysia, England, the United States of America and Indonesia, with special consideration towards Islamic Jurisprudence by referring to the opinions of various scholars and jurists. This paper has come into being through the studies of many literary articles, law cases, analyzing related statutes and studying the common practices of the previously stated nations. The paper had reached some fundamental outcomes which are: Malaysia and its mother land England shares similar practice in which withholding and withdrawal of treatment is considered lawful when faced with medical futility. As for the United States of America, some states adopted laws regulating end-of-life decisions, providing guidelines and proper sanctions for non-compliance which is contrary to Indonesia which do not have a specific regulation in dealing with medical futility cases. From the Islamic law perspective, scholars had advised that heavy consideration should be given according to the Maqasid Syariah by adhering to the hierarchy of fiqh of looking after necessities, then needs, and then embellishments.
E-Hailing Transportation and the Issue of Competition in Indonesia Anggriawan, Rizaldy
Indonesian Comparative Law Review Vol 2, No 1: December 2019
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.2116

Abstract

E-hailing transportation can be an alternative solution for both fulfilling the increasing demand for public transportation and reducing the number of vehicles on the road. As a populated country, Indonesia has benefited much from the emergence of e-hailing transportation. Unfortunately, despite positive impacts that have been enjoyed, numerous issues have arisen along with the growth of e-hailing transportation in the country. There are several indications that e-hailing companies have been involving in an unfair competition, including predatory pricing. This is done by offering very low fare of transportation services (commonly referred to as promotion fare) whose purpose is to eliminate their competitors. As such, the winner will be monopolizing the market and harming the ecosystem in it. The aims of this paper is to examine whether the Indonesian competition law can address the unfair business competition within e-hailing industry. It is found that e-hailing industry in Indonesia has been exposed to the practice of cash-burning by the business players. Competition law is needed to foster fair competition among the business players in e-hailing industry. Furthermore, the Government needs to formulate the good competition policy and ensure its enforcement.
Development of Land Conflict Settlement Model Based on Indigenous Knowledge of the Local Communities in Indonesia Sunarno, Sunarno
Indonesian Comparative Law Review Vol 1, No 2: June 2019
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.1211

Abstract

Land conflict has become a classic issue in Indonesia and an effective dispute settlement seems to be urgent. The study aims at evaluating the possibility to incorporate the indigenous knowledge of the local communities in land dispute settlement system. This socio-legal research employs both qualitative and quantitative approach.It is found that the current legal and institutional systems are not in accordance with the legal consciousness of the Indonesian society. The purposes of agrarian policy have been controlled by the domination of the state over the people’s rights. The policies were made to safeguard the interests of elite and its supporters and at the same times ignore the society interests. As the old model of land dispute settlement, the Dutch procedural law (HIR) served the colonial interest. In fact, there are statutory provisions in the sector of natural resources and land that regulate land dispute settlement that accommodate the local wisdom. In addition, article 18 of the 1945 Constitution and Article 5 of the Basic Agrarian Law explicitly recognize the capacity of the indigenous people in settling land dispute. However it needs further elaboration and institutionalization of their values. The development of a legal system model based on local community wisdom is a must which it means a legal system that is incorporated from the value of the original legal system of the Indonesian nation. The Indonesian customary legal system rests on the concept of regional values that exist throughout Indonesia regions.
Model of Local Wisdom Legal Source and State Law in Aceh Government Zulfan, Zulfan
Indonesian Comparative Law Review Vol 1, No 1: December 2018
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.1106

Abstract

The initial process of the peace agreement between Indonesian Government and Aceh Free Movement in 2005 was through sociological, philosophical, juridical and political considerations. The Free Aceh Movement attempted to reconstruct the source of local wisdom law in Law Number 11 the Year 2006 regarding Aceh Government. It means that the 1945 Constitution of the Republic of Indonesia recognizes and respects Aceh's special government units. Essentially, the arrangement of placing the model of the source of the law of local wisdom exists to be enforced as a unity of law and facts cannot be separated. Consequently, law and implementation re-quire unity of will. Why does the Free Aceh Movement love the arrange ments and practices of the old constitution and tradition? Because the source of Islamic Shariah, the foundation of the Aceh community life is articulated in the modern perspective of democratic and responsible state government. Basic aspirations of the specificity of Acehnese religious community life not only in the field of custom, cultural, social and political, but provide legal certainty in all affairs. The main target responds to the failure of state challenges to uphold the law, democracy, freedom of human rights and justice. The study was limited to how their wishes to change the concept of legal arrangements and practices worked in the real world, linking the legal unity with the facts of society to the two sets of legal documents governing Aceh. The study used normative approach, legal history, and comparative law. Juridically, there are two main goals to be achieved from the implementation of the arrangements and practices in this study. First, it places the differences and equations of both models of the source of local wisdom law and the design of state law. Secondly, it turns out that the concept of Acehnese legal culture highly values pluralism.
Environmental Justice in Intra Generations: An Overview of Aristotle's Distributive Justice to Coal Mining Endyka, Yovi Cajapa; Muhdar, Muhamad; Sabaruddin, Abdul Kadir
Indonesian Comparative Law Review Vol 3, No 1: December 2020
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.v3i1.11234

Abstract

Indonesia is a country with abundant natural resources, ranging from sand. Tin, copper, coal, iron ore to gold. Therefore, the State should provide environmental justice to create reserves with wise and sustainable management of natural resources. This study uses a doctrinal method in order to answer the problem under study. This study will examine how Aristotle's distributive justice can sharpen the concept of justice for coal mining management. This study will focus on environmental justice in intra-generational terms in terms of Aristotle's distributive justice to coal mining. Protection of access (conservation of access) reflects the allocation of rights and access to natural resources balanced between different generations and fellow members of the current generation. Thus, access to protection provides fair and non-discriminatory rights for every citizen of the current generation to use environmental resources. However, in using these resources, each member of the current generation has an obligation (equitable duties) to ensure that his actions will not reduce future generations' access to these resources. The state through mining or environmental policies has not provided justice for the community, where the community accepts more risks such as social injustice, environmental and health harm from coal mining activities than receiving the benefits.
Legal Friction of State Civil Apparatus Neutrality in Indonesia Sarnawa, Bagus
Indonesian Comparative Law Review Vol 1, No 1: December 2018
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.1105

Abstract

The State Civil Apparatus (ASN) is the executor of governmental and development duties. Therefore, ASN must be neutral. According to Law No. 5 of 2014, the neutrality of ASN must be free from the influence and intervention of all groups and political parties. In order to maintain the neutrality of the State Civil Apparatus from the influence of political parties and to ensure the integrity, cohesiveness and unity of the State Civil Apparatus, and to focus all attention, mind and energy on assigned duties, ASN is prohibited from becoming a member and / or political party official. Historically, the arrangement of ASN neutrality began during the Old Order period, which the issuance of Presidential Regulation No. 2 of 1959 on the Prohibition of Civil Servants and State Officials in Political Parties in that time. Furthermore, this Presidential Regulation is followed up and extended by Circular Letter of the President of the Republic of Indonesia No. 2 of 1959 concerning on Prohibition of Political Party Membership for State Civil Apparatus that implement state obligation outside his position. Furthermore, in the New Order era, Law No. 8 of 1974 on the Principal of Employee Affairs, while in the Reform Order was issued Law No. 43 of 1999, Civil Servants should be neutral from the influence of all groups and parties and not discriminatory in providing services to the community.
Parties to Crime: Development and Comparison Santoso, Topo
Indonesian Comparative Law Review Vol 2, No 2: June 2020
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.2217

Abstract

This article discusses parties to crime which are an important part of substantive criminal law. This concept is related to the involvement of more than one person in a criminal offence. Problems in participation include its definition, forms of participation, timing of implementation and criminal responsibility of the person involved in the participation. The debate over parties to crime has started from its definition since the formulation the Criminal Code is very short and need interpretation and the differences among the forms of participation. This article also discusses the arrangement of participation in several
Reviewing the Prosecution of Medical Practitioners in Common Law Countries: A Needed Step or a Flawed Approach? Wahab, Mohd. Iqbal Bin Abdul; Qazi Zada, Mohd Ziaolhaq
Indonesian Comparative Law Review Vol 2, No 1: December 2019
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.2112

Abstract

The prosecution of medical practitioners for the medical gross negligence has dramatically increased in the past decades. This was in a bid to curb the high prevalence and occurrence medical malpractice by the medical community. However, there are no proper data to support that the prosecution had any significant impact in reduction of such occurrences. Many believe that the criminal prosecution for medical practitioners in the course of their duties is not a right approach to take on. This paper aims to examine the medical gross negligence that occurred by the medical practitioners by reference to the various different common law countries and decided cases. 
Employment Arrangement for Person with Disabilities in Indonesia in Post-New Order Era Dewi W, Imma Indra
Indonesian Comparative Law Review Vol 1, No 2: June 2019
Publisher : Universitas Muhammadiyah Yogyakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18196/iclr.1207

Abstract

The right to employment  of persons with disabilities  got better attentions in Indonesia, especially after the fall of the New Order era. This paper discusses the employment arrangement for persons with disabilities in Indonesia in Post-New Order era.  It is found that some reforms have been made to accealerate the fulfillment of  the right to employment  of persons with disabilities. It began with the enactment of Law Number 21 of 2002 on Labour Union  and Law Number 13 of 2003 on Employment. In addition, the Government had ratified the Convention on the Rights of Persons with Disabilities through Law Number 19 of 2011. Furthermore, Law Number 8 of 2016 on Person with Disabilities was issued. This law has properly regulated the rights of persons with disabilities, including their employment rights. Nevertheless, this law still requires several comprehensive operational regulations.  Law Number 13 of 2003 can be synchronized with Law Number 8 of 2016 since it functions as a guideline for employers and workers in carrying out working relationship. 

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