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Lentera Hukum
Published by Universitas Jember
ISSN : 23554673     EISSN : 26213710     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
E-Journal Lentera Hukum merupakan sarana ilmiah bagi mahasiswa untuk menyalurkan pemikiran-pemikiran ilmiah di bidang ilmu hukum. Artikel yang dikirim belum pernah dipublikasikan atau tidak dalam proses penerbitan dalam berkala ilmiah lain. E-Journal Lentera Hukum terbit tiga kali dalam setahun yaitu April, Juli, dan Desember. Diterbitkan secara elektronik atas kerjasama Fakultas Hukum dan UPT Penerbitan Universitas Jember
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Articles 197 Documents
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Pseudo-judicial Review for the Dispute over the Result of the Regional Head Election in Indonesia Mexsasai Indra; Geofani Milthree Saragih; Tito Handoko
Lentera Hukum Vol 10 No 1 (2023): Human Rights in Indonesia and Beyond
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i1.36685

Abstract

In Indonesia, the Constitutional Court has the power to decide the dispute over the result of the national election, including that of the regional head election. In practice, the Constitutional Court exercises power with the so-called pseudo-judicial review for the result of the regional election dispute. This study aims to analyse the rationale of the Constitutional Court to implement a pseudo-judicial review over the regional head election result, given the judicial activism that also is limited to checks and balances. It also links the theoretical basis for rule-breaking and judicial activism by the Constitutional Court, the transition of the Constitutional Court's power in deciding regional election disputes from temporary to permanent, as well as further analysis of why the Constitutional Court needs to file a lawsuit for review. This study used legal research that examined legal principles and regulations with a theoretical approach analysed qualitatively. The results of this study indicate that pseudo-judicial review affirms the legal breakthrough beyond ordinary decisions as this was made on the ground of the public interest. While the Constitutional Court is essential in maintaining and overseeing democracy in Indonesia, the rationale of the Constitutional Court under the public interest is justified as it is constitutionally correct that has led to judicial activism. A pseudo-judicial review is for substantial justice and can influence time efficiency.
No Choice but Welcoming Refugees: The Non-Refoulement Principle as Customary International Law in Indonesia Dodik Setiawan Nur Heriyanto; Sefriani Sefriani; Fezer Tamas
Lentera Hukum Vol 10 No 1 (2023): Human Rights in Indonesia and Beyond
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i1.37920

Abstract

The non-refoulement principle requires each country to consider refugees and asylum seekers in their country of origin if they are subject to persecution and threaten their lives. As a geographically strategic country, Indonesia has been a significant crossroad for international refugees and asylum seekers often consider Indonesia their temporary destination. Moreover, the complex situation of international refugees has encouraged to reinterpret of the principle of non-refoulement into various national measures and domestic policies, given that Indonesia is deemed a transit country for refugees and has not ratified the 1951 Convention on the Status of Refugees. This paper aims to analyse the concept of refugee protection under international law, particularly the non-refoulement principle and investigate the application of the non-refoulement principle in Indonesia. This study employed normative and empirical legal research with statutory, conceptual, and comparative approaches. This study confirms that the non-refoulement principle is part of jus cogens norms in international law but does not fit in its application. Indonesia has inconsistency in upholding the non-refoulement principle into the binding normative rules. Refugees have received far less attention from the Indonesian government due to insufficient infrastructure and financial allocation. Moreover, the existing executive regulations do not provide effective enforcement since these regulations have a lower position in the hierarchy and cannot have deterrent sanctions. Hence, ratification of the 1951 Convention is urgently needed by Indonesia to guarantee the protection of refugees within its jurisdiction. At the regional scope, Indonesia can encourage ASEAN countries to adopt good practices in the European Union to set sharing quotas to ensure that not most refugees escape to Indonesia.
Navigating Human Rights in Indonesia and Beyond Muhammad Bahrul Ulum; Ari Wirya Dinata
Lentera Hukum Vol 10 No 1 (2023): Human Rights in Indonesia and Beyond
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i1.38435

Abstract

The article is an editorial that supposedly does not need an abstract.
Shareholders' Claim for Reflective Loss in International Investment Agreement through ISDS Arbitration Practice Addyana Belaputri; Damos Dumoli Agusman; Prita Amalia
Lentera Hukum Vol 10 No 2 (2023): In Progress
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i2.39534

Abstract

Shareholders’ claim for reflective loss appears to be commonly accepted by the Investor-State Dispute Settlement (ISDS) tribunals. Several international investment agreements (IIAs) have construed the condition of losses or damage under IIA to address the shareholder reflective loss (SRL) issue. Nonetheless, through the ISDS decision, the interpretation appears to be disparate. This article will aim to analyze the status of SRL in IIA through conditions of losses or damages as investment dispute characteristics and IIA text formulation to limit such conditions in addressing SRL issues through juridical normative and comparative study with a descriptive-analytical characteristic. Foreign direct investment regimes driven by the IIA show how important the IIA’s role is in providing adequate protection of investment including dispute mechanisms set through. The author will use the juridical and comparative methods by reviewing the existing statutory and case laws. The condition of loss or damage under IIA also appears to cover SRL. The limitation through the scope of allowed claims regarding whose losses, have been interpreted by several tribunals to limit a direct claim for SRL. However, the interpretation seems to be inconsistent with the other tribunals. An explicit text formulation and applying the loss-based general rule into IIA will then help to address consistent and genuine outputs of the applicable rule to limit the condition of losses or damage pertaining to the claim for SRL. In conclusion, the condition of losses or damage led the tribunal to allow the claim for SRL, yet through a limitation of the condition, the claim for SRL will be construed with specific requirements and procedures to avoid intersectoral issues. State parties in negotiating IIA are suggested to consider limiting the condition of losses or damage by adopting text formulation that led the ISDS tribunal’s interpretation to a genuine meaning of the applicability rule which the parties intended to, specifically, regarding investor’s right to claim SRL. Thus, the risk of harm that the host state suffers will be avoided.
Gender Perspective of Judicial Appointment Process in South Africa and India Sricheta Chowdhury; Uday Shankar; Dipa Dube
Lentera Hukum Vol 10 No 2 (2023): In Progress
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i2.39546

Abstract

Requiring a woman to choose between work and personal life is the most severe form of discrimination she can face. In practice, the large disparity between the number of women and men is not getting much attention, despite the significant increase in women studying law. From a colonial misogynist whim to a post-colonial facade of the "new-age construct of Indian woman," the legal profession has done nothing to decolonise itself from its rudimentary understanding of "equality of opportunity." When Indian jurisprudence has been swooning over the sweeping effect of transformative constitutionalism in the understanding of equality as enshrined in the Indian Constitution, one cannot help but wonder why the legal profession was left out of its brushing effect. It leads us to examine the existing literature on bar policies and the steps taken by regulatory bodies in assessing situations that are favourable or unfavourable to furthering women's issues in modern-day India. In contrast, South Africa's pro-women Bar policies are appealing in terms of evaluating their applicability and extent in terms of promoting inclusivity at the Bar. This article seeks to capitalise on the potential of these two countries in carving out a niche for women to play a substantive role in designing governance policies through the judiciary. The methodology makes use of a comparative and analytical understanding of doctrinal resources. The article examines the current gender composition of the legal profession while supporting the concept of substantive equality as a requirement in designing an appropriate judicial appointment process. The welfare policies of Bar, for instance, the parental leave, keeping track of the demographic composition of advocates in South Africa plays a distinct role in transforming the gender composition of the judiciary.
China’s Unsubstantiated Claims on Baselines: Legal Consequences Affecting International Security Thi Kim Cuc Nguyen; Huu Phuoc Ngo
Lentera Hukum Vol 10 No 2 (2023): In Progress
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i2.38567

Abstract

For all nations, the stability of the global order is a significant concern. Despite the efforts of the international community, Asia’s peace and security are threatened by China’s aggressive behaviours in the South China Sea. Accordingly, China has claimed nearly the whole South China Sea as its territory, including water internationally acknowledged as belonging to other nations. States have the right to determine and declare their baselines for coastal areas, islands, and archipelagos that fall under their national sovereignty with regard to international law of the sea. Because of the inconsistency with the rules of international law in general and the international law of the sea in particular, China’s claims in this case are unsubstantiated. This article aims to determine China's violations to comply with their obligations under international law, especially in the South China Sea disputes. By using analysed and evaluated methods, this study pointed out the regulations that violate international law contained in documents such as the Declaration of China on the baselines of the territorial sea in 1996, the Coast Guard Law of China in 2021, the Maritime Traffic Safety Law of China in 2021, by using the comparative methods of these documents with the provisions of the international law, particularly the United Nations Convention on the Law of the Sea in 1982. The article also highlights the severe effects of China's behavior on Vietnam, particularly the implementation of the two laws previously mentioned that violate Vietnam's territorial integrity in the Paracel and Spratly Islands. As a result, the paper suggests certain notes for Vietnam and other nations to void China’s aforementioned legal documents. These suggestions, in particular, will contribute to protecting the sovereignty, sovereign rights, and jurisdiction of Vietnam, and the freedom of navigation and overflight of countries for nations across the world.
Regulatory Limits of Empowering Biogas Digester Integrated with Indonesia’s Local Wisdom Prischa Listiningrum; Ida Bagus Ayodya Maheswara; Herlin Sri Wahyuni; Avanish Vibhu
Lentera Hukum Vol 10 No 2 (2023): In Progress
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v10i2.37210

Abstract

This paper analyses the international and domestic regulatory framework for managing waste-to-energy in Indonesia’s rural areas to support climate mitigation. The countryside is known to be the most significant contributor to organic waste due to the high productivity of the agricultural and livestock sectors. In contrast, organic waste is left without proper management and contributes to global greenhouse gas emissions. Indonesia has agreed to contribute to the Paris Agreement to reduce emissions by 29 percent in 2030 or 41 percent with international assistance, but its follow-up to switch to renewable energy appears insufficient. This study uses a socio-legal approach to unpack the waste-to-energy problems in one of Indonesia's villages: Tawangsari Village, Pujon District, Malang Regency, East Java Province. The study results reveal that the biogas program launched by the Government through the "Program BIRU" was not in accordance with local conditions in Tawangsari village because not all farmer households had sufficient land to build a fixed dome. Thus, it is necessary to build a community-based centralized biogas digester. However, legally, there are no provisions in the regulations governing the mechanism for funding renewable energy development in villages, which has been mandated by Article 20(2) of the Energy Law. In this context, the village can use village funds to carry out development based on local wisdom, but the limited number of village funds causes limited growth that can be carried out. In addition, there are no standard rules for bio-slurry processing and maintenance of biogas digesters to ensure the sustainability management of biogas. This paper recommends enacting national and/or domestic regulations to support the energy-independent village program, aligning with the government's commitments to reduce global emissions from the agricultural and waste sectors.

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