Volksgeist: Jurnal Ilmu Hukum dan Konstitusi

Questioning Indonesia's Role in Addressing Rohingya Refugees: A Legal, Humanitarian, and State Responsibility Perspective

Tedi Sudrajat — 2024-06-01

This article discusses Indonesia’s involvement in addressing the plight of the Rohingya refugees, who have been deprived of citizenship, leading to the erosion of their basic human rights. This deprivation has resulted in widespread social exclusion and displacement, forcing many to seek asylum in countries like Indonesia. Therefore, this study aims to: firstly, analyze the legal framework within which international law enables the Indonesian government to responsibly manage refugee situation; and secondly, evaluate the collective efforts of the Indonesian government and the global community in seeking a comprehensive resolution to this crisis. The paper focuses on the legal dimensions of the Rohingya refugee situation in Indonesia, employing a normative approach. It offers a descriptive analysis from the perspective of governance and international law. The findings emphasize the need for the Indonesian government to adopt a proactive stance. Key measures include advocating for the Rohingya's right to citizenship, urging the Myanmar government to halt its violence, and calling for active intervention from the United Nations (UN) and the international community. Furthermore, it is recommended that Indonesia continues to offer temporary refuge on humanitarian grounds, ensuring the provision of aid and adhering to the principle of non-refoulement. Effective coordination among local and central governments, as well as international partners, is essential for the strategic management of refugee issues.

Optimizing Legal Protection: Addressing the Disparity of Sanctions Regarding Personal Names in Birth Certificates as Population Documents

Ali Maskur — 2024-06-01

This article discusses the issue of disparity in sanctions arising from the issuance of the Regulation of the Minister of Home Affairs of the Republic of Indonesia on Name Registration in Population Documents. A case in Tuban highlights a child who was unable to obtain a birth certificate because the name was too long to be entered into the Population and Civil Registration Office system. The regulation imposes restrictions on naming children, requiring a minimum of two words and no more than sixty characters. Non-compliance with this regulation can result in the non-issuance of a birth certificate, potentially rendering the child stateless. This situation contradicts UDHR Article 15, ICCPR Article 24, CRC Articles 7-8, and the 1945 Constitution Article 26 (1) on citizenship. The purpose of this study is to highlight the imbalance between regulatory rules and sanctions, demonstrating how lower-level regulations can violate higher-level rules. This research employs a qualitative, literature-based, and normative-doctrinal approach. Secondary data sources include Permendagri No. 73/2022, the Population Administration Law, the 1945 Constitution, and international regulations related to population and citizenship. The findings indicate that birth certificates reflect the state's responsibility to provide citizens with rights, including the right to identity. However, the sanction of not issuing a birth certificate due to regulatory non-compliance creates a disproportionate disparity in naming rights. Therefore, policy revision is necessary to optimize legal protection, making the system more equitable and in line with legal norms.

Restrictions on Hajj Pilgrimage for Indonesian Congregation from the Perspective of Sadd al-Dzari’ah

Achmad Siddiq — 2024-06-02

The Hajj queue in Indonesia, which extends up to 25 years, necessitates clear and effective policies to mitigate this issue. One such policy is encapsulated in the Regulation of the Minister of Religious Affairs of the Republic of Indonesia No. 29/2015, which amends the earlier Regulation No. 14/2012 on the Implementation of Regular Hajj. This regulation prohibits individuals who have already performed the Hajj pilgrimage from re-registering for a period of 10 years. This research employs the Ushul Fiqh approach. Data were collected by reviewing and analyzing pertinent literature, including documents and regulations of the Minister of Religious Affairs, as well as several ushul fiqh books and other relevant sources. The study aims to examine the restriction as a means to prevent potential unrest in the community, in line with the concept of Sadd al-Dzari’ah. This restriction is intended to benefit those who have not yet performed Hajj and to safeguard the rights of others to undertake this worship, adhering to the principle of tasharruf al-imam ala al-ra'iyah manuth bi al-maslahah. The implementation of this policy is expected to exchange the efficiency and effectiveness of Hajj pilgrimage management and reduce public unrest. Therefore, it is crucial that this policy is executed clearly and effectively to maximize its benefits for the community.

The Urgency of Administrative Law in Light of Ius Constituendum Regarding the Role of Village Heads

Diding Rahmat — 2024-06-04

This article delves into the crucial aspects of the Constitutional Court of the Republic of Indonesia's decision, focusing on the emergency state of administrative law concerning open legal policy decisions referred back to legislators, particularly regarding the tenure of village heads. The study employs a conceptual and legal approach, centering on the Constitutional Court Decision No.15/PUU-XI/2023 concerning the village head's position. This represents an open legal policy for law framers, paving the way for the political prevention of Pilkades (village head elections) money politics. Law No. 6 of 2014, which is under consideration for revision, lacks explicit measures against money politics. The methodology adopted is normative legal research that integrates legal theory with legislation. The findings indicate that open legal policy rulings necessitate immediate action by law framers, signaling administrative law urgency. The rationale is that law framers must react to that decision, and revising the law does not necessarily require inclusion in the National Legislation Program (Prolegnas). Decision on open legal policies must be administratively executed by law framers, including the issuance of Government Regulation in Lieu of Law (Perpu), which subsequently require legislative approval to become law. In essence, the decision of the Constitutional Court carries a moral and ethical coercive force, achieved by transforming ius constitutum into ius constituendum.

Exploring Child Grooming Sexual Abuse through Differential Association Theory: A Criminological and Legal Examination with Constitutional Implications

Indah Sri Utari — 2024-06-05

The rapid evolution of technology, particularly the ubiquitous presence of the internet, has brought about significant societal changes. While technological advancements have brought numerous benefits, they have also introduced new challenges and risks. Among these challenges is the alarming rise of child grooming, a form of sexual harassment perpetrated against minors, facilitated by the online environment. In Indonesia, the incidence of child grooming is increasingly prevalent, with several reported cases highlighting its emergence as a pressing societal issue. However, the absence of specific legal frameworks addressing this crime has posed significant challenges for law enforcement authorities tasked with its prevention and prosecution. The lack of dedicated legislation targeting child grooming underscores the need for a comprehensive legal response to effectively combat this form of exploitation. Currently, law enforcement officials rely on discretion in the absence of specific legal provisions, resulting in ad-hoc approaches to addressing these cases. This paper employs a normative juridical approach, utilizing The Statute Approach, to examine the legal landscape surrounding child grooming in Indonesia. By synthesizing existing literature and statutory regulations, this study aims to shed light on the legal complexities inherent in combating this emerging crime. In conclusion, while child grooming remains a relatively new phenomenon in Indonesia, its detrimental impact on minors necessitates urgent legislative action. By enacting dedicated laws and policies, the Indonesian government can provide law enforcement agencies with the necessary tools to effectively address and mitigate the prevalence of child grooming, ensuring the protection and well-being of the nation's youth.

Alternative Dispute Resolution in Marine Pollution: Advancing Ecological Justice through the Polluter Pays Principle

Nita Triana — 2024-06-11

This study seeks to elucidate the challenges associated with compensation in marine pollution disputes through the lens of the Alternative Dispute Resolution (ADR) model. Governed by UUPPLH Number 32 of 2009, polluters are mandated to provide compensation for both affected parties and environmental restoration. However, the implementation of the ADR model in practice has seen polluters compensating only the affected communities, notably fishermen. This research endeavors to develop an ADR legal framework that encapsulates ecological justice, ensuring fairness for both society and the environment. The methodology employed in this study is non-doctrinal legal research, which involves analyzing legal phenomena within their social and cultural context. Findings from this research indicate that pollution disputes in the waters in Cilacap were resolved using the ADR model, with a disproportionate focus on compensating fishing communities. This results in environmental damage due to minimal environmental ADR legal framework grounded in the Polluter Pays principle. Such a framework should encompass legal provisions for environmental prevention, mitigation, and restoration. From a structural perspective, it is imperative to foster integration and connectivity between the community and ministries responsible for addressing marine environmental pollution, to facilitate effective environmental mitigation and restoration efforts. Additionally, in the realm of legal culture, there is a crucial need to cultivate legal awareness among the public regarding environmental conservation and management. This awareness should permeate all levels of society, including business entities, legislative bodies, the government, and law enforcement agencies. A robust legal system is essential for making ADR an equitable mechanism for resolving disputes, benefiting both victims of pollution and the environment.

Artificial Intelligence Policy in Promoting Indonesian Tourism

Abdul Kadir Jaelani — 2024-06-15

Artificial intelligence changes how tourist destinations operate, provides better service to visitors, and provides long-term benefits for local communities and the environment. However, it is essential to question whether governments can effectively resolve data privacy and cybersecurity challenges when deploying these technologies. This study aims to analyze issues related to the role of artificial intelligence policy in promoting Indonesia's digital tourism. This research employs a normative legal approach, drawing from both statutory and historical sources. This research concludes that Indonesia promotes artificial intelligence in tourism by investing in AI technology research and development, collaborating between the government and the private sector to implement AI solutions, and establishing a supportive regulatory framework to ensure the ethical use of AI in tourism. The impact of digitalization policies on digital tourism includes increasing accessibility and convenience for tourists through online ordering systems and digital payment methods, developing smart destinations with Internet of Things technology and data-based insights, and enhancing tourist experiences through augmented reality applications and virtual reality.

Ius Constituendum Regulates the Cadre-Based Recruitment of Candidates for Members of the House of Representatives Through Political Parties

Muhammad Mutawalli Mukhlis — 2024-06-24

This study seeks to examine the challenges associated with cadre-based recruitment of the House of Representative candidates by political parties and to propose ideal frameworks for such recruitment. The current processes of political party recruitment are not comprehensive and encounter philosophical, sociological, and juridical issues. Philosophically, recruitment practices and orientations differ widely among parties, with some adopting populist methods and others being controlled by party elites. Sociologically, a feudalistic political culture ties parties to certain figures, promoting a pragmatic approach aimed at winning elections rather than ensuring candidate quality. Juridically, while Law Number 2 of 2011 mandates democratic cadre recruitment, Law Number 7 of 2017 on General Elections lacks clear requirements for nominating cadres, resulting in inconsistencies between the laws. This research employs a normative legal methodology, incorporating conceptual, statutory, and comparative approaches. The study involves analyzing regulatory documents, books, journals, and other relevant scholarly works to explore how legal provisions are implemented in society. The findings indicate that problems in cadre-based recruitment arise from ambiguous principles and orientations in regulations. Future arrangements should prioritize party ideology and orientation, drawing on practices from Malaysia and the United States. It is crucial to establish statutory principles for political party cadre and recruitment, focusing on character, utility, ideology, vote balance, democracy, transparency, justice, and equality.

Digital Labour Platformer’s Legal Status and Decent Working Conditions: European Union and Indonesian Perspective

Rofi Aulia Rahman — 2024-06-25

This article aims to provide the recent court decision on legal status and working conditions for the gig worker in European Union as well as a lesson for Indonesia through the EU’s notion on gig workers. The European Union (EU) Commission enacted in 2021 a draft Directive proposal to ensure Europe's gig (platform) workers enjoy the same labour rights as other traditional employees. This article employs doctrinal legal research with statutory and comparative approach, as well as court decision are considered as the main basis to protect gig workers. The result shows that the drafts Directive to ensure Europe’s gig workers is relied on Articles 16 and 153 (1)(b) of the Treaty on the Functioning of the EU (TFEU), on data protection and working conditions, respectively. It has the advantage of giving certainty about the minimum requirements and procedural obligations that Member States must apply in platform work relations. Courts of several EU MSs, including Belgium, France, Greece, Italy, the Netherlands, Portugal, Spain, and the UK, already ruled in favour of platform workers not qualifying as self-employed, obliging platforms to reclassify them as employees. Meanwhile, Indonesia's perspective on gig workers remains vague, and the minimal standards for gig workers are unbalanced in comparison to the EU's perspective on gig workers. This article introduces the main notions and provisions of the proposed EU platform work Directive and analyses the current conditions and legal framework of Indonesia in handling the issue of gig workers.

Problems of Converting Agricultural Land and the Need to Anticipate Its Control After the Enactment of the Job Creation Law

Irene Mariane — 2024-06-30

The main problem that farmers face now is the conversion of land function from agricultural to non-agricultural ones because of conflicts of interests. Behind this problem, there is an increase in demand for lands as a result of economic and population growths, leading to food security and import dependence threats. Therefore, protecting agricultural lands becomes more and more urgent to ensure the national food security. This research aims to identify the arising problems regarding the conversion of agricultural land function and the need to anticipate its control upon the enactment of Law Number 11 of 2020 concerning Job Creation. This research applied a normative research method using statute approach. The data it used consisted of primary legal materials such as Law Number 11 of 2020 on Job Creation, and its derivative regulations such as Government Regulations (GR) and one Ministerial Regulation as technical operating references. The data were collected by reviewing the literature and studies, using qualitative analysis, including content analysis to evaluate information objectively. The conclusion was drawn deductively, from general ideas to specific findings. An in-depth investigation was carried out into the relevant legal facts using frame analysis, which limited the scope of studies and attempted to find solutions to the arising issues. The research found that upon the enactment of Job Creation Law, a significant change occurred in the regulations on agricultural land conversion in Indonesia. This led to new challenges in managing the land conversion and required anticipatory measures. Tight monitoring on the agricultural land usage and establishment of a specific institution to manage the state’s agricultural lands are needed. Through farmers’ and community’s active participation, it is expected that the government’s programs can be more responsive to local needs and maximize the use of limited resources.

The Problem of Filing for Bankruptcy in Indonesian Law: Should the Insolvency Test Mechanism be Applied?

Ermanto Fahamsyah — 2024-06-30

The resolution of bankruptcy disputes in Indonesia presents significant challenges due to the ease with which bankruptcy can be filed against debtors, even if they are capable of continuing their business operations and repaying their debts to creditors. This issue arises from the provisions of Article 2, paragraph (1) of Law 37/2004, which stipulate only two requirements for declaring bankruptcy: the existence of a past due debt and the presence of at least two creditors. This paper aims to examine the problems associated with bankruptcy dispute resolution in Indonesia and to propose the implementation of an insolvency test mechanism as a prerequisite before a Commercial Court judge can issue a bankruptcy ruling. Additionally, the study offers a comparative analysis of the insolvency test mechanisms employed in several countries, including the Netherlands, Germany, the United States, and the United Kingdom. Utilizing a doctrinal approach, this legal research analyzes primary and secondary literature by reviewing laws and regulations pertinent to the issues at hand. The findings of this study suggest that adopting an insolvency test is a crucial policy for the bankruptcy law framework in Indonesia. The implementation of such a test could prevent the bankruptcy of debtors who are still capable of fulfilling their financial obligations. Consequently, there is a need to revise Law 37/2004 to incorporate a legal instrument for the insolvency test.