Volksgeist: Jurnal Ilmu Hukum dan Konstitusi

Foreign Fighters in the Ukrainian Armed Conflict: An International Humanitarian Law Perspective

2024-01-05T18:02:51+07:00

This study discusses foreign fighters who take part in the Ukrainian armed conflict. The aim of this study is to know about the history of the armed conflict of Ukraine, study the relevance of International Humanitarian Law to foreign fighters, and study the implementation of Human Rights obtained by foreign fighters based on International Humanitarian Law. The used is juridical-normative legal research or also called document research with secondary data as the main source. Researchers conduct legislative studies to see synchronization between legislation. Data were collected using literature review techniques, such as perusing, analyzing, and drawing conclusions from relevant documents. The results of this study conclude, first, the history of the Ukrainian armed conflict starting from the independence of Ukraine and culminating in the Russian special military operation that occurred on February 24, 2022. Second, the relevance of international humanitarian law to foreign fighters has no specific definition describing foreign fighters and only foreign terrorist fighters. Third, the implementation of human rights against foreign fighters is an inviolable or inalienable human right. However, in its implementation there are still many violations that occur in the armed conflict of Ukraine. Several methods are needed to overcome this problem, namely, the need to increase understanding and awareness regarding IHL and human rights, especially for foreign fighters, to all parties and, make policy recommendations regarding clarity of understanding for foreign fighters, which can then be used as a guide for policymakers and practitioners to increase the certainty of humanitarian protection for foreign fighters.

A Discourse of Justice and Legal Certainty in Stolen Assets Recovery in Indonesia: Analysis of Radbruch’s Formula and Friedman’s Theory

2024-01-05T18:02:40+07:00

This paper critically examines stolen assets recovery in Indonesia, employing Gustav Radbruch's legal philosophy, which asserts that justice is the purpose of law and any rule failing to promote justice is invalid, along with Lawrence Friedman’s sociological theory. The aim is to illuminate Indonesia's challenges and opportunities in recovering ill-gotten assets, an issue intertwined with corruption, transnational crime, and international cooperation. Radbruch’s formula serves as the moral and ethical basis for evaluating asset recovery. It prioritizes justice in legal systems, insisting that just laws are the only legitimate ones. This paper applies Radbruch’s formula to assess Indonesia's legal frameworks and processes for asset recovery, emphasizing principles like fairness, equity, and legitimacy within this context. Furthermore, this study incorporates Friedman’s sociological theory, which examines how law evolves in response to social norms and values. It explores how sociocultural factors in Indonesia influence the development of legal mechanisms, public attitudes, and enforcement strategies regarding asset recovery. These perspectives offer valuable insights into Indonesia’s asset recovery challenges. They underscore the need for a holistic approach that integrates ethics, law, and sociology to enhance fairness and effectiveness. International collaboration is also emphasized due to the transnational nature of illicit financial flows. This paper contributes to a nuanced examination of Indonesia’s stolen assets recovery. By bridging legal philosophy and sociological theory, it provides a comprehensive framework for policymakers, legal professionals, and scholars engaged in pursuing justice and asset recovery in Indonesia and beyond.

Upholding Judicial Independence through the Practice of Judicial Activism in Constitutional Review: A Study by Constitutional Judges

2024-01-05T18:02:44+07:00

The practice of judicial activism, though not formally defined within the jurisdiction of the Constitutional Court (MK), is implicitly recognized as an integral element of independent judicial power. The importance of this independence is underscored as a fundamental necessity for the preservation of law and justice. This research utilized a normative juridical methodology, incorporating conceptual, comparative, and case-based analysis. The study findings reveal that judicial activism, as practiced within the Constitutional Court, is underpinned by independent judicial authority. Moreover, this practice aligns with the tenets of progressive legal doctrines, which not only acknowledge the significance of codified legal provisions but also endorse legal innovations for the pursuit of justice. The practice of judicial activism within the Constitutional Court is indispensable for reinforcing the principle of checks and balances. The subjective and abstract nature of judicial activism, however, necessitates objective validation through the principle of virtue jurisprudence.

The Urgency of Establishing Constitutional Court Procedural Law

2024-01-05T18:02:36+07:00

The formulation of procedural law within the constitutional court is a crucial requirement, as stipulated by Article 24 C paragraph (6) of the 1945 Constitution of the Republic of Indonesia. While the Constitutional Court Procedural Law is outlined in Law No. 24 of 2003 on the Constitutional Court, it merely provides general points. Special aspects, aligned with individual case characteristics, are deferred to the Constitutional Court for independent regulation based on Article 86 and the Explanatory Note to Law No. 24 of 2003. However, this delegation is inappropriate as procedural law should be governed by Law-level regulations, not by Constitutional Court Regulations (PMK). To date, the Constitutional Court continues to produce the Procedural Law in the form of PMKs. This study employs a normative juridical research method, with a statutory and conceptual approach, and conducts analysis in a qualitative descriptive manner. This paper concludes, firstly, that the creation of procedural law within the constitutional court holds philosophical, juridical and sociological significance. Secondly, the drafting process of the constitutional court’s procedural law must adhere to the process of forming sound laws and regulations and contain materials in line with their level as prescribed in the legislation.

Addressing Campus Sexual Violence: A Collaborative Governance Approach to Legal Policy

2024-01-05T18:02:26+07:00

Campus sexual violence is a pervasive issue affecting institutions worldwide, with a concerning upward trend in reported incidents. This article scrutinizes legal policies and the efficacy of collaborative governance in mitigating this pervasive problem. The model of collaborative governance, a globally recognized legal policy approach, is at the heart of this study. Utilizing socio-legal research methods, the article employs comparative legal and conceptual legal approaches, drawing from secondary literature sources. The study reveals that the implementation of legal policies and collaborative governance can significantly curb campus sexual violence in Indonesia. This can be achieved by actively engaging both academic community and the wider public. By drawing lessons from countries such as the United States, the Netherlands, Canada and the United Kingdom, Indonesia can replicate their success in reducing campus sexual crimes. These measures include the creation of legal policies, establishing partnerships with central and local governments, and fostering collaborative governance. Key initiatives that have proven effective in these countries include the development of service guidelines that prioritize victim and survivor protection, amplified anti-sexual violence campaigns on campuses, and the promotion of sexual violence awareness education. The establishment of a National Campus Sexual Assault Commission to evaluate the enforcement of educational ministerial regulations and religious affairs ministerial regulations in preventing and addressing campus sexual violence is also recommended. This article offers valuable insights for policymakers in their efforts to devise effective legal strategies to prevent sexual violence on campus.

Overcoming Regulatory Hurdles in the Indonesian Crowdfunding Landscape

2024-01-05T18:02:31+07:00

With the exponential rise in crowdfunding, several pertinent issues have come to the fore. These include unauthorized access to personal data, exorbitant interest rates for funding recipients, and investor fund security concerns. Other issues, such as aggressive debt collection practices and misuse of donated funds, also warrant attention. The underdeveloped state of crowdfunding regulations in Indonesia, which offers insufficient legal certainty and protection, is often blamed for these issues. Thus, a thorough examination of the legal and regulatory framework governing crowdfunding in Indonesia is crucial. This study scrutinizes the legal norms, identifies, and harmonizes the diverse regulations applicable to crowdfunding in Indonesia. The findings underscore the necessity for enhancements in the laws and regulations pertinent to crowdfunding. Key areas of focus should include establishing a legal status for crowdfunding platforms, setting fair interest rates, fortifying investor fund security mechanisms, penalizing illegal crowdfunding activities, and intensifying oversight of fund usage in donation-based crowdfunding schemes. Equally crucial is the imposition of penalties for regulatory breaches in crowdfunding, reflecting a genuine commitment towards ensuring justice and legal certainty in all crowdfunding transactions.

Examining the Legal Standing of IKN Authority Regulations within Indonesian’s Legislation System

2024-01-05T18:02:13+07:00

This study scrutinizes the status of the regulations enacted by the Nusantara Capital City Authority (IKN Authority) within the Indonesian legislative hierarchy, based on Law Number 3 of 2022, also known as the IKN Law. A normative research approach underpins this analysis, utilizing legislative and conceptual methodologies. The investigation concludes that the IKN Law’s Article 5 paragraph 6, was drafted to accommodate all regulations formulated by the IKN Authority. These regulations, born out of the authority's attribution, hold an equivalent standing to those issued by a minister, institution, or agency at the central level given that the IKN Authority is an institution at the ministerial level. Consequently, the formulation of these regulations adheres to the rules governing central-level regulations, with the Supreme Court conducting their review. The unique aspect is the subject matter, which relates to the governance structure of the IKN Authority. Moreover, the formulation of regulations by the IKN Authority should: 1) Define the IKN entity’s position as a unique regional government entity; 2) Outline the types of regulations to be enacted; 3) Clarify the source of authority, which is attribution-based; 4) Specify its position in the hierarchy, equivalent to Regional Regulations; 5) Detail the formulation process and treatment, aligning it with the creation of regional legal products; 6) Elucidate the subject matter of the Regulatory Authority; and 7) Highlight the review process, which can be escalated to the Supreme Court.

Presidential Nominations from Active Cabinet Ministers: A Delicate Balance between the Interpretation of Constitutional Court Decisions and Political Interests

2024-01-05T18:02:21+07:00

The Constitutional Court’s Decision number 68/PUU-XX/2022 has sparked substantial debate among various societal factions. The controversy stems from the interpretation that the ruling potentially enables ministers to misuse their authority and exploit state resources for electoral advantages while running for President or Vice President, without necessitating resignation from their current position. This study seeks to discern the ramifications of the Constitutional Court's decision number 68/PUU-XX/2022 on the roles and authorities of ministers within a presidential government structure, and to scrutinize the decision from an Islamic law/siyasah perspective. This investigation adopts a descriptive qualitative approach, grounded in library research. The normative juridical methodology is employed, focusing on decision number 68/PUU-XX/2022. The study concludes that within the context of siyasah sharia, the decision could compel the nation’s leader (the President) to promulgate legal regulations that violate the principle of fairness between high-ranking and ordinary officials. However, the President risks being deemed unconstitutional if derivative regulations stemming from the decision are not enacted. Power abuse by state officials (ministers), partly driven by conflict of interest, is a critical concern. From the perspective of Islamic law/siyasah, the decision’s implications could potentially harm society and the government.

Safeguarding Consumers: The Role of Industry and Trade Office in Countering Monopolistic Practices and Ensuring Business Protection

2024-01-09T11:15:47+07:00

This research investigates (1) the significance and function of the consumer protection and anti-monopoly division within the Industry and Trade Office in supporting business entities, and (2) the measures that the Industry and Trade Office should adopt moving forward to address regulatory needs, particularly concerning anti-monopoly and business competition, in Kendari. This study employs Conflict Theory and Symbolic Interaction Theory as its theoretical framework. The findings reveal that (1) the relevant division plays a crucial role in conducting Consumer Protection Socialization as a program managed by the Industry and Trade Office of Southeast Sulawesi Province, involving business entities, consumers, community members, and university students; (2) activities centered around consumer protection and anti-monopoly implemented by the relevant division are as described by the Head of the Consumer Protection and Trade Order Division: The Consumer Protection Monitoring System serves as a medium for consumer complaints and information related to consumer protection to be integrated into the system at the Provincial Office responsible for trade, aiming to enhance service to consumers in lodging complaints from those who feel wronged.

Evaluating the Effectiveness of Age Restriction on Marriage in Indonesia

2024-01-09T11:15:42+07:00

Child marriage in Indonesia is a multifaceted issue, encompassing religious interpretations, cultural values, and even the influence of technological advancement. A significant factor is the amendment of Indonesian marriage law, which include Article 7, empowering judges to grant marriage dispensation. While this is viewed by some as a solution and a means of child protection through religious and cultural lenses, others see it as a perpetuation of child marriage, contradicting both child protection and marriage laws. This research aims to examine the impact of marriage law in Indonesia, specifically regarding age restrictions and its close association with marriage dispensations in religious courts. Critics argue that this provision has led to an increase in child marriages, with a multitude of biological, physiological, and sociological implications. This study employs normative legal research, incorporating legal, conceptual, and comparative approaches through case analysis and juridical methods. The findings indicate that Marriage Law No. 1 of 1974, along with its amendment—Law No. 16 of 2019, are legally inconsistent with Law No. 23 Year 2002 on child protection. Therefore, legal reform is recommended to raise the marriage age to 21, aligning with biological, psychological, and sociological definitions of adulthood.