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INDONESIA
Indonesia Law Review (ILREV)
Published by Universitas Indonesia
ISSN : 20888430     EISSN : 23562129     DOI : https://doi.org/10.15742/ilrev
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Indonesia Law Review (ILREV) is an open access, double-blind peer-reviewed law journal. It was first published by the Djokosoetono Research Center (DRC) in 2011 to address the lack of scholarly literatures on Indonesian law accessible in English for an international audience. ILREV focuses on recent developments of legal scholarship, covering legal reform and development, contemporary societal issues, as well as institutional change in Indonesia. Realizing the global challenges and ever-increasing legal interaction among developing countries, ILREV also welcomes articles on legal development in the ASEAN region and the larger Global South. By that token, it aims to provide a platform for academic dialogue and exchanges of ideas between scholars and professionals, especially from the Global South. As such, ILREV encourages comparative, multidisciplinary, interdisciplinary, and other approaches to law which can enrich the development of legal scholarship not only in Indonesia but also the Global South as a whole.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 239 Documents
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INDONESIAN PERSPECTIVE ON THE INVESTOR–STATE DISPUTE SETTLEMENT MECHANISM FOR FOREIGN INVESTMENT DISPUTE SETTLEMENT IN THE FIELD OF INTELLECTUAL PROPERTY RIGHTS Leonard, Jessica; Amalia, Prita; Chandrawulan, An An
Indonesia Law Review
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Abstract

Investment includes tangible and intangible assets. Intangible assets are often connected with intellectual property which leads to intangible results. The lack of “visibility” in intangible assets makes them difficult to measure. Current international regulations have not also explicitly provided room for enforcement regarding intellectual property rights in terms of foreign investment. Therefore, an emergence of cases is observed in investment disputes within the field of intellectual property rights through the Investor–State Dispute Settlement (ISDS) mechanism. In this research, we discuss cases of foreign investment disputes in such a field. From these cases, we find the factors that determine the occurrence of foreign investment disputes in the field of intellectual property rights. The ISDS mechanism can be used to resolve foreign investment disputes in the field of intellectual property. Furthermore, this research discusses the perspective of Indonesian law regarding foreign investment disputes in the mentioned field by using the ISDS mechanism. Qualitative methods and secondary data analysis are also used. The research aims to discover and identify foreign investment disputes in the field of intellectual property rights.
INDONESIAN DEMOCRACY AND POLITICAL PARTIES AFTER TWENTY YEARS OF REFORMATION: A CONTEXTUAL ANALYSIS Ulum, Muhammad Bahrul
Indonesia Law Review
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This paper traces the trajectory of Indonesian democracy that has developed in the last twenty years, specifically regarding the extent to which its continuities and changes have been consistent with the rationale for reformation. It enquires whether the current democracy has been transformed based on liberal constitutionalism or the new democracy has restored the integralist ideal. In recent years, the mass protests that increasingly color Indonesian politics have become a critical response to a failing system. This analysis asserts that the lack of functioning political parties in Indonesia and the breakdown of Indonesian democracy as a result of integralism ignores essential checks and balances. The situation is exemplified by the cooperation of the opposition parties in the cabinet, including the promotion of gotong royong (mutual help) in the form of Prabowo Subianto, Joko Widodo’s rival in the 2019 Presidential Election. Subianto has long been implicated in human rights abuses, going back to East Timor invasion in the 1970s. This attitude also indicates the serious threat that gradually negates the hard-won liberal democracy at the dawn of the reformation. Among these trends, the current democracy reveals the ineptness of the existing political parties that were essentially liberalized in the early Reformation. As it stands, they have been unable to prevent the current system from being led to a more autocratic model.
CORRUPTION IN MATCH-FIXING WITHIN SPORTS: THE NEED TO REGULATE FUTURE LEGISLATION (A COMPARATIVE STUDY AND LESSON FROM THE AUSTRALIAN SYSTEM OF LAW) Silalahi, Ranto Sabungan
Indonesia Law Review
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Abstract

The Indonesian football league has been devastated greatly because of match-fixing, a problem that has caused the decline of the country’s achievements in international events. The ongoing mechanism of using sports law or lex sportiva is considered ineffective because it provides no deterrent effect on offenders. The country may learn from Australia, who has gained many international sports achievements by previously eradicating match-fixing in sports, including football. Australia has included match-fixing among acts of sports corruption, and offenders may be sanctioned both by receiving criminal punishment from a law authority and disciplinary sanction from a sport or football authority. To prevent and address the involvement of gambling syndicates in many instances of match-fixing in football matches, the country has enacted a national policy on the codes of conduct and anti-match-fixing measures in sports and established a special unit to coordinate the law authority and sports authority. Although it has a different system of law, Indonesia may learn from Australia in eradicating match-fixing in football and may have many great achievements in international events as a result.
COMPARATIVE STUDY ON E-WASTE MANAGEMENT AND THE ROLE OF THE BASEL CONVENTION IN MALAYSIA, SINGAPORE, AND INDONESIA: A WAY FORWARD Shad, Khalid Mehmood; Ling, Sarah Tan Yen; Karim, Mohammad Ershadul
Indonesia Law Review
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Abstract

Electrical and electronic equipment waste (E-waste/WEEE) is a current global concern because of the increasing volume and improper treatment of e-waste. Generally, e-waste can be defined as discarded components of electrical and electronic equipment that have no reuse value. The improper disposal of e-waste can bring about catastrophic effects to mankind and the environment. The Basel Convention in 1992 categorizes e-waste as hazardous waste due to the presence of toxic materials. Currently, the production of e-waste is expanding at a considerable rate and is expected to reach 52.2 million tons globally by 2021. Singapore, Malaysia, and Indonesia are three neighboring countries that are facing the issue of e-waste management. The shortage of appropriate recovery and recycling facilities for formal e-waste treatment in the aforementioned three counties may lead to informal e-waste treatment or unsafe landfill, which cause harmful and hazardous effects to human lives and nature. This review provides a comprehensive overview of e-waste management from the perspective of Singapore, Malaysia, and Indonesia. Inadequate governmental policies, lack of e-waste laws, lack of public awareness, and lack of management strategies have caused various social and environmental issues. This work concludes with recommendations for the three countries to restrict the free flow of e-waste by establishing robust e-waste laws and improving the e-waste management system.
LEGAL ISSUES ON INDONESIAN MARINE PLASTIC DEBRIS POLLUTION Jing, Zhen; Sutikno, Sutikno
Indonesia Law Review
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Abstract

Various problems related to marine plastic debris pollution have yet to be resolved. Therefore, the definition, categorization, origin, and degradation of marine plastic debris must be thoroughly investigated to gain a comprehensive understanding of the related issues. The presence of marine plastic debris has significant implications on marine environments, including ecological, biodiversity, health, and economic impacts. Marine plastic debris originates from both landand ocean-based sources, and there have been efforts to prevent or reduce its introduction and accumulation in the marine environment. In Indonesia, such a problem must be solved through the implementation of more effective, efficient, and specific regulations, especially because it is the second-largest contributor of plastic debris in the marine environments throughout the world. In order to reduce 70% of such debris by 2025, the Government of Indonesia established the National Coordination Team of Marine Debris Management, which is tasked to draft policies and carry out coordination, control, and evaluation related to marine plastic debris pollution. The law enforcement in marine plastic debris pollution is known as the legal system, which comprises the substance of the law, facilities, society and culture, and the officers enforcing the law. The effectiveness of law enforcement refers to the ideal combination of these aforementioned elements.
CRIMINISTRATIVE LAW: DEVELOPMENTS AND CHALLENGES IN INDONESIA Naibaho, Nathalina; Harkrisnowo, Harkristuti; AR, Suhariyono; Wibisana, Andri Gunawan
Indonesia Law Review
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The borderlines between core criminal law and administrative law developed in such a way that it became increasingly difficult to draw a clear and a firm category while dividing line between those. The category of a measure as administrative or criminal is far from being theoretical as it preconditions the applicable legal regime and especially the level of procedural safeguards benefiting to those sanctioned. This paper is questioning the gray area belonging to something in between criminal and administrative law and discussing the rule and the role of criminal law and administrative law in action when the later comprehend punitive administrative sanctions. Several circumstances need to be considered in order to determine the appropriate sanction to fill the gap. This article also suggests the use of “una via principle” as an approach to unpack the gray area in the role of criminal and administrative law, specifically in tax law case.
THE ADMISSIBILITY OF EARTH OBSERVATION DATA IN LEGAL PROCEEDINGS: A CLOSER LOOK TOWARDS DATA IMAGING Muhammad, Alif Nurfakhri
Indonesia Law Review
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Abstract

Space capabilities utilization, specifically Earth observation capabilities is not just limited to environmental protection and disaster mitigation, as was shown in the UN Principles on Remote Sensing. It can also be used to support law enforcement and legal proceedings in court. However, the technology of Earth observation is very complex and the process from primary earth observation data to analyzed information requires a degree of manipulation to create comprehensive data. Because of this, there is an issue of admissibility of Earth observation data in court. This article would like to answer the fundamental question on how can this data be admissible, beginning with the procedure to obtain it and to ensure the authenticity of the data, and finds that there are methods of Data Imaging and Digital Audit that may ensure its authenticity. It will also find that obtaining this data for evidence requires a process of special agreement that needs to be looked at more in the future.
WHEN CHILDREN’S RIGHTS ARE AT STAKE, SHALL COURT REMAIN SILENT? ANALYSIS ON THE IMPLEMENTATION OF PASSIVITY OF JUDGE PRINCIPLE IN CHILD MARRIAGE DISPENSATION IN INDONESIA Susanti, Laras, Ms
Indonesia Law Review
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This article explores the existence of asas hakim pasif (passivity of judge principle) in cases involving children in civil cases in Indonesia. As one of the basic principles in civil procedure, judges must be bound by the scope of the case and evidence brought by parties. The principle is not absolute, however, showing that under the Law on Judicial Power; judges are obliged to uphold justice by exploring law and social values more than often. A study case in marriage dispensation shows that judges are facing pluralism orders. Therefore, judges’ value and understanding of children’s rights is a determinant factor. Recently, the Law on Marriage Number 1 of 1974 was amended along with the enactment of Supreme Court Regulation Number 5 of 2019 on Guidance of Marriage Dispensation Examination, which provides better protection for children from child marriage, both in substantive and procedural rights. This article then recommends judges to be more active in deciding on child marriage by upholding the spirit of child protection and encourages the Supreme Court (Mahkamah Agung) to increase its activities to mainstreaming child protection issues.
KOMNAS HAM'S HUMAN RIGHTS JURISDICTION OVER BUSINESSES INVOLVED IN THE HAZE CRISIS Prinhandono, Iman; Hosen, Nadirsyah; Boom, Kelly
Indonesia Law Review
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Indonesia’s forest fires have caused a serious haze problem nationally and in the Southeast Asian region, which has caused harm to the rights to life, health and a healthy environment, work, education, and many others. The forest fires largely stem from harmful slash-and-burn methods of land clearing, done at large scales by corporations. Judicial mechanisms have proven ineffective to deter violating corporations and bring justice to victims. From a legal standpoint, Komnas HAM’s quasi-jurisdictional powers allow it to act as a non-judicial grievance mechanism for victims in the haze crisis and against violating corporations. However, issues with the non-binding nature of its reports and mediation, inability to compel violating corporations to participate in its investigation and mediation, as well as declining trust in Komnas HAM’s integrity may prove to be significant barriers to the effective exercise of jurisdiction and the provision of effective remedies to victims. Komnas HAM and ELSAM’s national human rights plan, issued in 2017, is a step in the right direction. However, further steps are required from a legislative standpoint to broaden Komnas HAM’s mandate for it to effectively perform its functions, in the haze crisis and beyond.
INEFFECTIVE REFUGEE STATUS DETERMINATION PROCESS: HINDRANCE TO DURABLE SOLUTION FOR REFUGEES RIGHTS AND PROTECTION Nordin, Rohaida; Nor, Norilyani Hj Md; Rofiee, Rosmainie
Indonesia Law Review
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In any State of Asylum, the process of Refugee Status Determination (RSD) conducted by the United Nations High Commissioner for Refugees (UNHCR) is critical in facilitating asylumseekers to seek necessary protections. UNHCR ensures that asylum-seekers will not be returned involuntarily to the State of Origin where they could face persecution. As a long-term solution, UNHCR helps refugees to find appropriate and permanent solutions to their plights, either by repatriating them voluntarily to their homeland or assisting them to integrate into the States of Asylum or helping them to resettle in third States. In the absence of domestic legal protection in dealing with the refugees and asylum-seekers in Malaysia, a variety of operations are executed by UNHCR, including the admission, registration, documentation, and status determination of asylum seekers and refugees. To prevent the deportation of individuals qualified for international protection, UNHCR should reassess its RSD process in Malaysia, and consider alternative means that would be less burdensome and less risky for people who are fleeing violence and human rights violations. Primarily aimed at reassessing the RSD process in Malaysia using a doctrinal and comparative approach, the analysis is presented in four parts in this article. The first part provides for the definition and current statistics of refugee and asylum-seekers in Malaysia; the second part examines the mechanism of RSD conducted by UNHCR under international law; the third part focuses on how RSD operates in Malaysia; the last part reviews the mechanism of RSD in Indonesia and Brazil.

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