Media Iuris

Back Matter Volume 7 No. 2, June 2024

2024-06-26T13:42:10+00:00

Back Matter Volume 7 No. 2, June 2024

Front Matter Volume 7 No. 2, June 2024

2024-06-26T13:33:17+00:00

Front Matter Volume 7 No. 2, June 2024

Diskursus Pengujian Peraturan Kebijakan (Beleidsregel) oleh Peradilan Tata Usaha Negara

2023-11-01T10:38:11+00:00

The policy rule, or beleidsregel, is a legal instrument derived from a discretionary legal authority known as freies Ermessen. Unlike legislation and decisions, which are grounded in formal legal principles, policy regulation is based on the principle of discretion. However, in the evolution of administrative law in Indonesia, the use of discretionary power has become more formalized, blurring the lines between policy rules based on discretion and statutory regulations. Despite this, the review and testing of policy regulations continue to rely on general principles of good governance. This reliance makes it challenging for judicial institutions to review or annul policy regulations if they infringe upon citizens' rights. This paper employs a juridical-normative method, incorporating conceptual-theoretical, statutory, and comparative approaches, to evaluate and propose how the state can safeguard citizens' rights violated by policy rules. It also examines whether the judiciary should have the authority to review policy rules. The study concludes that an appropriate mechanism should be established between the reviewing body and the standards for evaluating policy rules. Furthermore, the judiciary should have the discretion to determine the standards for policy regulations, whether by applying general principles of good governance or by also considering laws and regulations that a policy regulation might violate.

The Evolution of Scientific Evidence Theory in Criminal Law: A Transformative Insight

2024-01-29T09:51:21+00:00

Criminal law evolution accentuates the contrast between traditional eyewitness testimonies and precise modern forensics. While testimonies offer depth, scientific methodologies provide unparalleled accuracy in investigations. This study examines the challenges and merits of both in light of technological advancements. The objective is to understand the evolving paradigm of scientific evidence in criminal justice, emphasizing its integration and balance with traditional evidentiary methods for upholding judicial integrity and revealing material truth. The result of this study is historical evolution in the theory of scientific evidence which has transitioned from relying on testimonies to verifiable scientific data, including advancements in DNA and cyber technology. This scientific approach, characterized by its objectivity, replicability, and measurability, offers a robust foundation for discerning truth and justice, surpassing the limitations of mere factual accounts. Modern criminal law's integration of this evidence signifies a deep-rooted commitment to justice, ensuring verdicts are swift, fair, and grounded in undeniable truth.

Climate Litigation in Indonesia: Lessons from the Royal Dutch Shell Case

2024-06-03T09:39:41+00:00

This article compares the concept of unlawful act in the Indonesian and Dutch Civil Codes, with specific attention to the notorious decision of the Milieudefensie et al v. Royal Dutch Shell Case. Therein, the Dutch Court applied unwritten law under Article 6:612 of the Dutch Civil Code, calling for reduction in carbon emissions through policy changes by the Shell group. The use of unwritten law allowed for a comprehensive assessment of legal bases, including international soft law instruments, such as the United Nations Guiding Principles on Business and Human Rights. Inspired by such a decision, this article aims to unveil the readiness of Article 1365 of the Indonesian Civil Code in entertaining a similar case. It compares the approach taken in the Milieudefensie et al. v. Royal Dutch Shell Case with pertinent decisions by the Indonesian court concerning the implementation of Article 1365 of the Indonesian Civil Code. Furthermore, it focuses on two prongs of civil liability that are necessary for establishment: 1) unwritten law; and 2) causality. By doing so, this article aims to contribute to the evolving realm of climate litigation, specifically within the framework of civil law.

Prioritas Lingkungan dalam Model Bisnis Alternatif: Pendekatan Hukum dan Doughnut Economy

2024-05-05T07:52:25+00:00

The Donut Economy visualization emphasizes how important it is to balance social and ecological boundaries to ensure a safe and equitable space for everyone. This research aims to determine the benefits of the Donut Economy concept in prioritizing environmental health in alternative business models by reforming laws in Indonesia. This normative legal research uses a comparative approach. Comparisons were made between Indonesia and the Netherlands. The results of this research found that the Netherlands has succeeded in applying the Donut Economy concept to reorganize cities after the Covid-2019 pandemic, such as the City of Amsterdam. Although Indonesia has legislation on environmental priorities such as the Government Regulations Replacing the Law (Perpu) No. 2 of 2022 on the Creation of Work Section 22, the existing regulations are still not strong enough to emphasize the priorities of the environment for business operators in Indonesia. From that, it is expected that Indonesia will follow the strategy taken by the Netherlands in implementing the concept of the doughnut economy, which should focus on the creation of a circular economy and participate in initiatives such as sharing platforms, used goods stores, online markets, and repair services.

Prinsip Sistemik Lembaga Perdamaian PKPU Untuk Mencapai Nilai Keadilan

2024-06-21T07:56:53+00:00

Systemic principles serve as the basic basis for thought and action processes, representing interconnected elements that contribute to the formation of a comprehensive whole. Bankruptcy law is a special and special law, regulated in Articles 222 to 294 of the Bankruptcy Law and PPU, PKPU is a legal peace institution whose operational elements include deciding judges, administrators, supervisory judges, debtors, creditors, and additional elements in the PKPU institution that are guarantors if provided. Systemically, these elements are interrelated both within their own elements and with theoretical elements, namely the Ideal elements (about meaning) and the actual elements. According to Article 287 of the Bankruptcy Law and PKPU Jo Article 282 of the Bankruptcy Law and PKPU, PKPU has a final and binding decision, but it is limited, and its decision is only related to the minutes of the meeting. The verdict still has legal consequences if violated. The author's motivation is to analyze systemic principles in the legal framework of PKPU peace institutions with the aim of upholding the principle of justice. The analysis methodology used is the legal system theory developed by Kees Schuit, focusing on the Ideal, Operational, and Actual elements. In addition, it incorporates three basic principles outlined by Gustav Radbruch – Certainty, Benefit, and Justice. The results of this study contribute prescriptive value to the field of law, especially in bankruptcy law.

The Urgency to Use the Rabat Plan of Action in the Hate Speech Offense

2024-02-07T09:44:31+00:00

The broad spectrum of hate speech makes it difficult for law enforcement officials to identify which speech can be punished. This difficulty creates uncertainty in law enforcement and potentially triggers injustice. Therefore, this article emphasizes the importance of assessing the multidimensional aspects accommodated in the Rabat Plan Action instrument to determine hate speech. The Rabat Plan of Action instrument is one of the international human rights instruments drafted to handle acts of hate speech without regard to the right to freedom of expression. The Rabat Plan of Action has six elements: context, position and status of the speaker, intention, content and form of speech, range, and possibility and potential for harm. In this article, Rabat Plan of Action was applied to the case of Bambang Tri Mulyono, who believed that President Joko Widodo's diploma was fake and his speech had been uploaded on a YouTube video. The simulation results confirm that the Rabat Plan of Action can effectively provide directions for extracting legal facts and related events so that law enforcement officials can find clues in determining the occurrence of hate speech. Based on these results, the Rabat Plan of Action should be adopted at the national level to complement the legal instruments for handling acts of hate speech.

Kedudukan Upaya Administratif dalam Dismissal Process dan Konstruksi Ideal Pemeriksaan Syarat Formal Gugatan

2024-04-17T08:32:13+00:00

This article analyzes administrative effort in the relation of Article 62 Law 5/1986 with Article 75 Law 30/2014 and Article 2 Supreme Court Regulation 6/ 2018. The purposes are: 1) To analyze the position and urgency taken by administrative effort in the dismissal process examination by the chairman; and 2) To formulate the ideal formula for examining the formal requirements of the administrative lawsuit before being examined by the panel of judges. This article aims to provide a practical explanation of these norms. It is a normative juridical type with a statute, a conceptual, and a caseapproach. The results are: 1) Administrative effort is a formal requirement in filing a lawsuit related to competence, so the chairman can determine that the lawsuit is not accepted; 2) The dismissal process and the preparatory examination by analogy has similarities, therefore these examinations can be combined with the condition that in filing a lawsuit, the plaintiff is required to attach evidence of having taken administrative effort. It recommends that executive/legislature make regulations related to the procedural law for examining administrative effort, and for the supreme court to review the norms and practices of the dismissal process and the preparatory examination in relation to formal requirements for filing a lawsuit.

Upaya Hukum Tata Usaha Negara Terhadap Polemik Penganugerahan Gelar Kehormatan Akademis

2024-04-26T08:38:33+00:00

The awarding of honorary academic degrees in the form of a chancellor's decision always gives rise to positive and negative assessments from academics and the public. The aim of this research is to analyze the chancellor's decision regarding the awarding of honorary academic degrees regarding the qualifications for the State Administrative Decree (KTUN) which is the absolute competence of the State Administrative Court (PTUN) as well as legal remedies for the polemic that arises as a result of the issuance of this decision. Next we will explain the efforts law regarding disputes that arise as a result of the rector's decision. This research uses a type of juridical-normative legal research with a historical, conceptual and normative approach. The results of this research show that the rector's decision regarding the awarding of academic honorary degrees, both honoris causa doctoral degrees and professorial degrees. Honor is a State Administrative Decision (KTUN) and is included in the absolute authority of the PTUN so that if a dispute arises, the resolution can be reached through the PTUN. The conditions for granting honorary academic degrees are the result of accumulated historical thought and experience in the legal dynamics that govern it. The legal remedies for the emergence of TUN disputes related to the chancellor's decision regarding academic honorary degrees are the same as resolving KTUN disputes in general, namely through administrative efforts or litigation efforts through the PTUN.