Jurnal Media Hukum
MEDIA HUKUM (JMH) (ISSN:0854-8919, E-ISSN:2503-1023) is journal published by Faculty of Law Universitas Muhammadiyah Yogyakarta. JMH publishes scientific articles that related in law, development and harmonization of Shariah and positive law in Indonesia. JMH are published twice a year, in June and December. Articles are written in English or Bahasa Indonesia and reviewed by competence reviewers.
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<![CDATA[KAJIAN TENTANG PERTAUTAN HUKUM HUMANITER INTERNASIONAL DENGAN HUKUM PENGUNGSI ]]>
<![CDATA[Riyanto, Sigit]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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<![CDATA[International Humanitarian Law and International Refugee Law are two branchs of law relevant to the protection of human rights in a specific context. This research aimed at evaluate the relationship of these two branchs of law. Legal materials that thoroughly considered and analized in this research were relevant international rules and facts embodied in international customs, general principles of law, international treaties, conventions, declarations and decisions of international organisation, recommendations, academic publications, proceedings and working papers. Based upon the analysis of the existing legal materials, eventually, it could be inferred that International Humanitarian Law has influenced International Refugee Law both in the standard setting and in the interpretation process. The rules embodied in these two branchs of law established a continuum protection for the victims of confilct with violence. Two international humanitarian agencies; International Committee of the Red Cross and the United Nations High Commissionner for Refugees has served as the guardians in the framework of promotion and implementation of these two branchs of law. Grave breaches of International Humanitarian Law and acts triggered international displacement were international wrongful acts and generate state responsibility.]]>
<![CDATA[GAP ANTARA FIKIH MUNAKAHAT DAN UNDANG-UNDANG PERKAWINAN ]]>
<![CDATA[Khaeruddin Hamsin, Muhammad]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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<![CDATA[The existence of marriage law in Indonesia has involved various interests such as religion, state, and women. In this sense, Indonesia expects to have a uniform marriage law in order to reduce gap and tension among the existing legal systems, namely Civil Law (Dutch Law), Adat law and Islamic law (fiqh). The research aims to study critically the reasons behind the gap between Fiqh Munakahah and Marriage Law Act in cause of marriage under age, to find out alternative policy resolving the gap. The research is normative legal research with non-doctrine approach. Both library and field research are conducted. The research find out that the alternative policy to overcome the gap is by enforcing legal sanction in marriage law, promoting more intensive legal awareness in the society and formulating a clearer provision in the marriage law act. Particularly on minimum age for marriage, therefore society might accept the law sociologically and philosophically.]]>
<![CDATA[LEGAL ISSUES RELATED TO THE SHARIAH ADVISORY COUNCIL IN MALAYSIA ]]>
<![CDATA[Norhashimah Mohd Yasin]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1402
<![CDATA[Malaysia has always aspired to be the hub for Islamic banking and finance. Various measures have been, and are being, carried out to promote Malaysia as an international Islamic banking and financial centre. As the backbone for this, the national Shariah Advisory Council (SAC) has been established under the auspices of the Central Bank of Malaysia Act 1958 (CBMA). Under the CBMA, the SAC has been conferred a statutory function as the authority for the ascertainment of Islamic law for the purposes of Islamic banking, as well as business and other types of Islamic financial businesses. In 2009, the CBMA 1958 was replaced and repealed. With the coming into force of the CBMA 2009, the role and functions of the SAC was reinforced and upgraded in terms of appointments of members and, most importantly, that the Shariah rulings pursuant to any reference made to the SAC by the Civil court or arbitrator concerning Shariah matters shall be binding on the Islamic financial institutions as well as on the court and any arbitrator. The issue of whether or not the SAC is the final arbiter on Islamic banking and finance disputes or, in other words, there is no longer a process of judicial review where it involves Shariah matters, will be the highlight of this paper. To what extent does the post CBMA 2009 solve the binding nature of the SAC upon the Civil courts of Malaysia as its rulings and directives are only relevant to ‘Shariah’ issues? What would be the situations if the issues of the Islamic banking and finance cases are deemed not to amount to a ‘Shariah’ issue, but are purely on banking, land matters or contractual interpretations? Has there any actual legal reform been brought about by this amendment or is it merely a cosmetic changes? If the court were to be bound by the SAC rulings, does this not usurp the independence of the judiciary which is the corner stone of the principle of separation of powers between the executive, the legislature and the judiciary? The above legal issues will be critically explored with the help of cases decided by the Malaysian Civil courts, pre and post CBMA 2009.]]>
<![CDATA[BURMA’S ROHINGYA CASE IN INTERNATIONAL LAW PERSPECTIVE ]]>
<![CDATA[Gunawan, Yordan]]>;
<![CDATA[Priambodo, Gatot]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1411
<![CDATA[Nowadays, the refugees issue is becoming serious problem to the international community. The problems of refugees becomes increase day by day along with a man-made disaster or a nature disaster. The Rohingyas ethnic is one of examples for refugee who caused by man-made disaster. They, the Rohingyas, experienced a persecution done by the military junta of Myanmar, their own government. The government of Myanmar doesn’t recognized that the Rohingyas belong to the citizen of Myanmar. With this condition, the Rohingyas called as a stateless person. They have no citizenship status. So they have no protection from any countries because they are stateless. The persecution from the Myanmar’s government make them, the Rohingyas, fled to another countries to get an asylum. Sometimes the presence of refugees in the country of transit or destination countries were forcibly repatriated . Such treatment is clearly contrary to the principles of international law recognized by civilized nations.There are some regulations pertaining to the issue of refugees, which are guarantee the rights of refugee. The right to get an asylum as stated in Article 14 (1) Universal Declaration of Human Rights. But the fact, there are many violations in refugees treatment done by some countries. The study is normative legal research with Statute Approach and Case Approach. This study would analysis the Rohingyas asylum-seeker based on some international laws concerning this problem as for the 1951 Convention Relating to the Status of Refugees and its protocol. The result shows the international law relating to the refugees issu that applicable to the Rohingyas case.Keywords:]]>
<![CDATA[COMBATING PIRACY: THE INDONESIAN CASE ]]>
<![CDATA[Kamil Ariadno, Melda]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1410
<![CDATA[Piracy at sea has been a threat to international navigation ever since the sea traverse by ships from west to east and north to south. Threat to international trade has resulted to various efforts in combating piracy regionally as well as internationally. International law has differentiated between piracy and sea-armed robbery, while the first requires regional or international cooperation due to universal jurisdiction, the second will directly fall under the jurisdiction of coastal state. Strait of Malacca has been used by international navigation and very fragile to the threat of piracy or even appropriately called as sea armed robbery since most of the time happened in the part of Indonesian territorial sea. Various efforts to combat piracy have been carried out by Indonesia including to cooperate with Malaysia and Singapore. This article discuss about piracy at sea, its legal definition and effort to combat piracy.]]>
<![CDATA[THE NATIONAL AND SHARIA ARBITRATIONS: A COMPARATIVE STUDY ]]>
<![CDATA[Fitriyanti, Fadia]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1412
<![CDATA[In the business world, of course, many considerations that underlie the business actors to choose arbitration as a dispute resolution efforts for dispute that will or they face. Among the advantages of arbitration over court based on Arbitration Act are the parties can choose the arbitrator. Although in the arbitration the parties can select arbitrators who are experts in their fields, seem the consideration to establish BASYARNAS (The National Sharia Arbitration Board) at first certainly raises the pros and cons. Based on the description of the background of the above problems then the formulation of the problem is how the comparison between national arbitration and sharia arbitration where the discussion focused on Rules and Procedures of BANI (The Indonesia National Board of Arbitration) and BASYARNAS. The substance of similarities between National arbitration and Sharia arbitration in the same way of resolving disputes other than through the courts or alqadla. With regard to the legal basis for the enactment of a national arbitration refers to Law No.30 of 1999 concerning Arbitration and Alternative Dispute Resolution, while sharia arbitration is not set explicitly in the Law No. 30 of 1999 even in this act there is no article that offends the existence of sharia arbitration.The existence of sharia arbitration is recognized in the elucidation of Article 59 paragraph 1 of Law Number 48 of 2009 concerning the judicial power, which reads referred to arbitration under the provisions of the law including the sharia arbitration.There are some differences between national arbitration and sharia arbitration, the differences are the source of law, the legal principle , the jurisdiction of authority, pre-hearing phase, hearing phase and enforcement of the arbitral award phase.]]>
<![CDATA[LEMBAGA PERADILAN DALAM PERSPEKTIF PEMBARUAN HUKUM ]]>
<![CDATA[Zainal Arifin Hoesein]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1375
<![CDATA[The study aims at knowing the judicial power in legal reform perspective. In principle the rule of law, all public policy and election of public officials must be based on the rule of law. To realize the principle of supremacy of law, then one major factor is the presence of the judiciary is the embodiment of judicial power is independent, and authoritative. Law enforcement can not be regarded merely as a process of applying the law, however, has a broader dimension especially with regard to the dimensions of human behavior. The legal problems that will always stand out is the problem of “law in action” and not “law in the books”. The judge is not only a spokesman for the law, but even further is the spokesman for law and justice. This means that the judiciaryfunction as an institution that is able to translate the law in concrete when dealing with written legal norms/laws, and even be able to find the law, when a legal vacuum. In this perspective the judiciary can function as a locomotive of legal reform, if the judiciary can run freely and independently, and adhering to the principlesof justice and expediency.]]>
<![CDATA[GAP ANTARA FIKIH MUNAKAHAT DAN UNDANG-UNDANG PERKAWINAN ]]>
<![CDATA[Muhammad Khaeruddin Hamsin]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1406
<![CDATA[The existence of marriage law in Indonesia has involved various interests such as religion, state, and women. In this sense, Indonesia expects to have a uniform marriage law in order to reduce gap and tension among the existing legal systems, namely Civil Law (Dutch Law), Adat law and Islamic law (fiqh). The research aims to study critically the reasons behind the gap between Fiqh Munakahah and Marriage Law Act in cause of marriage under age, to find out alternative policy resolving the gap. The research is normative legal research with non-doctrine approach. Both library and field research are conducted. The research find out that the alternative policy to overcome the gap is by enforcing legal sanction in marriage law, promoting more intensive legal awareness in the society and formulating a clearer provision in the marriage law act. Particularly on minimum age for marriage, therefore society might accept the law sociologically and philosophically.]]>
<![CDATA[KOPERASI JASA KEUANGAN SYARIAH BAITUL MAAL WAT-TAMWIL (STUDI KASUS DI BERINGHARJO, YOGYAKARTA) ]]>
<![CDATA[Umam, Khotibul]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1403
<![CDATA[Koperasi Jasa Keuangan Syariah Baitul Maal wat-Tamwil (KJKS BMT) is an organization that combines the concept of cooperatives and the concept of sharia. Both have the same spirit of kinship and mutual assistance (ta’awun). The concept is realized in the form of maal products and tamwil products, and accompanying activities, giving the product in question. Operational KJKS BMT based on the laws and regulations in the field of cooperatives.]]>
<![CDATA[IDEOLOGI DAN KONSTITUSI DALAM PERKEMBANGAN NEGARA-BANGSA INDONESIA: REKONSTRUKSI TRADISI, DEKOLONISASI, DAN DEMOKRATISASI ]]>
<![CDATA[Fitriciada Azhari, Aidul]]>
<![CDATA[ Jurnal Media Hukum Vol 20, No 1 (2013) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Muhammadiyah Yogyakarta ]]>
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DOI: 10.18196/jmh.v20i1.1405
<![CDATA[The research has purpose to investigate the development of Pancasila and the 1945 Constitution as the ideology and the constitution of Indonesia amidst the development of nation-state post-World War II and post-Cold War and its implication to position of people as a nation and citizens. With a socio-legal approach, the research found that the development of Pancasila and the 1945 Constitution has changed from the ideology and the constitution of postcolonial to the ideology and the constitution of post authoritarian. The change is marked by reduction of reconstruction of tradition and decolonization in the 1945 Constitution. Then, those are replaced by a purpose to democratization of the 1945 Constitution according to the universal values. The change that emphasizes on majority rule and rational choice also has shifted character of people from collectivity as a nation to individuality as a citizen.]]>
