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Brawijaya Law Journal : Journal of Legal Studies

LAW
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Published by Universitas Brawijaya

ISSN : 25030841 EISSN : 23564512 DOI : -

Core Subject : Social,

Law, Crime, Criminology & Criminal Justice

BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id

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Articles 239 Documents

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CAPITAL PUNISHMENT IN THE PERPECTIVE OF NON DEROGABLE RIGHTS Noerdajasakti, Setiawan
Brawijaya Law Journal Vol 3, No 1 (2016): Law and Human Rights Issues
Publisher : Faculty of Law, Universitas Brawijaya

Capital punishment is still exist as one of kind punishments in Indonesia. The existence of capital punishment is based on the Penal Code and other laws. On the other hand, however, according to Constitution 1945, MPR Decree Number XVII/MPR/1988 on Human Rights and Law Number 39 / 1999 on Human Rights, the right to live cannot be limited under any circumstances (non derogable). Capital punishment and the right to live as the right that cannot be limited under any circumstances (non derogable) are contradictive. This contradiction results a conflict of norm between legislations that legalize the existence of capital punishment and legislations that legalize the existence of the right to live.Â Solutions should be resulted to solve the conflict of norms.

THE ROLE OF THE VILLAGE IN FOREST MANAGEMENT: HUMAN RIGHTS PERSPECTIVES Rif'an, Mohamad; Setiawan, Hary; Wisnuaji, Adam
Brawijaya Law Journal Vol 3, No 1 (2016): Law and Human Rights Issues
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (168.626 KB)

1945 opening noble nation Indonesia is an agreement to live together (modus vivendi) in bonding the plural nation. The Modus Vivendi, has given birth to the state's objective, which is the nation's identity and guidelines in their stride. Thus, the constitution has mandated the State to be responsible for the welfare of the people. Indonesia has the second largest tropical forest in the world with high economic value that can be managed by the state and society. This allows for the utilization of various types of plants and economic aspects of the utilization of forest products. In preparation result is a pity forests is not optimal either with intensive and with many requests deforestation or forest land conversion. Deforestation well planned and unplanned forest. On the other hand, Indonesia which acknowledges the existence of the village government and the empowerment of the rural community empowerment which is a process for making the community to improve the quality of life for the better is weak then the need for the existence of the role of government in the village of Village forest management as one of the rights of the villagers. The type of research is normative juridical. Hence this paper initiated a grand design Village forest management to complete the processing and utilization of forest products that are integrated with the role of the village government as a system intended to pengoptimalam supply chain production as one of the important indicators of development and resilience of economies in each region using variable results income forests as principal.

PHYLOSOPHICAL AND CONSTITUSIONAL PROTECTION TOWARDS RELIGION IN INDONESIA Silfiah, Rossa Ilma; Luth, Thohir; Sugiri, Bambang; Aprilianda, Nurini
Brawijaya Law Journal Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective
Publisher : Faculty of Law, Universitas Brawijaya

Legal protection on religion is certainty for a state with Pancasila principle. The first principleÂ Â Â the Divinity of the Only God has been spirit of the following points, as living guidance for Indonesian country.Â The believing of Â Â Â the Divinity of the Only God shows that the Indonesian Republic is religious based country by protecting freedom to have religion for its people. Â This regulation has implication in governmental circle, that the country makes Religion Ministry as one of ministries that its existence has the same position to other state institutions. Â Â The implementation of legal protection toward religion needs legitimating in the field of civil law, showed in issuing PresidentÂ Â Decree Â Â No. 1 of 1965 on the Preventing of Â Â Â Misuse and/or Religion Staining. The existence of thisÂ Â Decree Â in Old Order has been legitimatedÂ newly as a LawÂ by issuing the LawÂ Â No. 5 of 1969, thus theÂ President Decree has been added to theÂ Criminal Code, ActÂ Â 156a.

UNRAVELING THE RIGHT TO LIFE IN CASES OF DEATHS RESULTING FROM THE ACTIONS OF STATE AGENTS UNDER THE SYSTEM OF ECHR Listiningrum, Prischa
Brawijaya Law Journal Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights
Publisher : Faculty of Law, Universitas Brawijaya

it shall be done in a certain threshold of necessity. In particular when the taken of life is done by the agents of states. This article examines the interpretation of article 2 by the European Court of Human Rights, especially when it is read in conjunction with stateâ€™s positive obligations under article 1. The discussion will proceed in three sections: first, the review of the evolvement of the procedural requirements of article 2 in cases of deaths arising from the acts of state agents. Second, is the examination of whether the procedural requirements of article 2 can be used as a mean in securing the adequate protection of the right to life from arbitrary killing by the use of lethal force. Third, is an analysis of an effective legal system as a procedural requirement of article 2 in the case of homicide caused by the negligence of the authorities. Finally, this essay will conclude by examining the Courtâ€™s position in its endeavours to achieve an appropriate balance between not over-burdening its Member States and securing the adequate protection of the right to life.

THE EMBODIMENT OF EFFICIENCY-JUSTICE PRINCIPLE IN INDONESIAN RETAIL REGULATIONS Tulandi, Edwin Steven; Suhariningsih, Suhariningsih; Sihabudin, Sihabudin; Winarno, Bambang
Brawijaya Law Journal Vol 4, No 2 (2017): Law and Sustainable Development
Publisher : Faculty of Law, Universitas Brawijaya

Retail regulations is one of national sector which is impacted by globalization on the legal aspects in Indonesia. The dynamics of the traditional retail (traditional market and mom and pop store) management in some areas tend to have an orientation on increasing local revenue which can be seen in the management of irregular traditional market management and transition of traditional market to the private sector. On the other hand, the proliferation of modern retail which is side by side with traditional retail is a form of arrangement that is not in accordance with the retail 's designation/purpose. This indicates that the efficiency-justice principle that aims to create a balance turns more to the efficiency of the exclusion of justice for traditional retail. This paper aims to analyze the embodiment of Efficiency-Justice Principle in Indonesian Retail Regulations. The method used in this research is normative-juridical method, which analyze existing national retail regulations. It proposes appropriate method in embodying Efficiency-Justice Principle in Indonesian Retail Regulations.

THE CHALLENGES OF INTERNATIONAL AIR LAW PRINCIPLES IN GLOBALIZATION ERA Kusumaningrum, Adi
Brawijaya Law Journal Vol 4, No 2 (2017): Law and Sustainable Development
Publisher : Faculty of Law, Universitas Brawijaya

The concept of stateâs sovereignty had become one of debatable issues within the international law studies during the 20th century. International air transport has always been one of the most regulated of industries of globalization. Therefore, airspace sovereignty no escape from the challenges of globalization. This regulatory system has been changing recently because of worldwide initiative that have paved the way for enhancing air transport liberalization. This is why numerous models have been hypothesized for a new (multilateral) aviation order to supersede bilateralism, which still remains the primary vehicle for liberalizing international air transport service for most states. This study intends to discuss about the basic principles of international airspace law that frequently facing challenges in the globalization era. In the last few decades is that the economic aspects of airspace sovereignty have dominated change, or the lack thereof, in the international air sovereignty regime. In addition, there are many challanges in politic and law. In the context of Indonesia airspace challanges, in the near future, it is needed to revitalize the function of the strong regulation. This can be started by re-evaluating the regulations that is continued by the arrangement of the anatomy of the setting that is comprehensive, systematic, careful, effective and also efficient based on two importance that are prosperity and security.

In Search of Remotely Piloted Aircraft Regulations State Practices and International Law Perspective What Indonesia can Learn? Uweh, Atip Latipulhayat; Ruhaeni, Neni
Brawijaya Law Journal Vol 5, No 1 (2018): Culture and Technological Influence in Regulation
Publisher : Faculty of Law, Universitas Brawijaya

Remotely Piloted Aircraft (RPA) has been used for different purposes, from hobby to military purposes. The rapid development of RPAâ€™s technology has made RPA regulations in most countries become more quickly obsolete. It is exacerbated by the fact that there is no agreed internationally RPA regulation so far, except an amendment of Annex 2 of the Chicago Convention 1944, which broadens the notion of aircraft to include RPA. This article identifies legal issues and models of RPA regulation in several countries and what Indonesia can learn and to look for an adequate and appropriate model to make the Indonesian RPA regulation, legally acceptable and technologically adaptable. This paper argues that the Chicago Convention, the model of RPA regulations in several countries, and the special interests of Indonesia as an archipelagic state are the three important elements that should be taken into account in the establishment of an appropriate and adequate Indonesian RPA regulation. This paper used normative method whcih analysing existing legal framework in RPA

TRANSNATIONAL ORGANISED CRIME IN INDONESIA: THE NEED FOR INTERNATIONAL COOPERATION Mitchell, James N
Brawijaya Law Journal Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective
Publisher : Faculty of Law, Universitas Brawijaya

This article examines the growing infuence of transnational organised crime on the nations of South East Asia. Human trafficking, maritime piracy, terrorism and wildlife trafficking are major transnational crimes that cause significant harm to both individuals and national economies. This article examines the continuing domestic and international legislative, law enforcement and policy efforts of South East Asian nations to address transnational organised crime. it is concluded that to effectively counter transnational organised crime there is a need to employ international cooperation that is focused on addressing the unique factors of each crime.

THE FREEDOM OF RELIGION WITHIN A SYSTEM OF BASIC RIGHTS ACCORDING TO THE GERMAN BASIC LAW AND THE INDONESIAN CONSTITUTION Enders, Christoph
Brawijaya Law Journal Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective
Publisher : Faculty of Law, Universitas Brawijaya

PHILOSOPHICAL VALIDITY, THEORETICAL, NORMATIVE AND EMPIRICAL PARADIGM OF GENERAL PRINCIPLES OF GOOD GOVERNANCE (AUPB) AS A REVIEW OF PRESIDENTIAL IMPEACHMENT Nadir, Nadir; Soedarsono, Soedarsono; Hamidi, Jazim; Syafaat, Muchamad Ali
Brawijaya Law Journal Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights
Publisher : Faculty of Law, Universitas Brawijaya

Philosophical validity showed of the Principles of Good Governance (AUPB) as A review to Presidential impeachment, is a principle of AUPB that contains ethical normative values used as the foundation of good governance, clean and respectable, moreover to complement the shortcomings and ambiguities in law. Technically, the application of AUPB by the judges of the Constitutional Court (MK-RI) can be approached through induction and deduction legal reasoning. The method of implementing AUPB by the judges of the Constitutional Court (MK-RI) is accomplished by deductive at first, meaning that the special rules is focused more to the certain field of law, then these are deducted based on its basic rules and deducted again into the rules of substantive, and deducted again into the rules of cases. After that, it starts to applicate the rules of case based on the concrete case by the judge, because of the nature of the judges of the Constitutional Court (MK-RI) is kholifah filardi as the representative of God on earth to uphold the law and justice. While theoretically AUPB is valid, the judge ius curia Novit as a verdict maker to perform legal discovery (rechtsvinding). Empirically AUPB is valid, it can be seen from the cases of impeachment against the President of the United States William Jefferson Clinton, on suspicion of "abominably act" (misdemeanors). Additionally, AUPB empirically has been tested through jurisprudence since Amtenarenwet 1929 officially applied on March 1, 1933. Centrale Raad van Beroep, in his verdict on June 22, 1933, and the jurisprudence verdict of Hoge Raad on November 13, 1936, and the jurisprudence verdict of Hoge Raad 1919. While the normative validity is based on the leading legal doctrine, that AUPB is positioned as the unwritten laws that must be obeyed by the government, and AUPB considered as a part of positive law. Moreover, in Indonesia AUPB incarnates in various legislations even though his name is remained as principal.

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