Arena Hukum

A Model of State-Owned Asset Management Based on Pancasila Values: Achieving the Highest and Best Use

2024-07-09T01:27:12+00:00

This article discusses the formulation of a model called "Sustainable and Equitable Organization and Management of State/Region/Village-Owned Assets Based on the Pancasila". The authors introduce a “highest and best use” approach to state asset management, aiming to address gaps in existing norms around asset governance, particularly regarding the absence of a mechanism for asset management and dispute resolution. This condition can potentially bring about corruption through the exchange of state land assets that are unequal in value. The model initiated by the authors comes from the need to elaborate the legal politics of Pancasila into laws that specifically regulate the management of state assets with the principle of best utilisation oriented towards the greatest prosperity of the people. This conceptual research aims to formulate and develop a research model with the following outputs: a. to find a paradigm for agrarian legal research that is based on the critical agrarian approach in the perspective of legal science; b. to determine the integrity and harmony with the Pancasila philosophy, and the constitutionality of regulation and institutionalism, of the management of state/region/village-owned assets; c. to formulate an institutional model for conflict resolution in agrarian affairs, primarily for cases of conflict involving state/region-owned assets in the form of an agrarian court that can resolve and eliminate the backlog of cases of agrarian conflicts for both public and private aspects specifically, with legal certainty and justice. Achieving this goal requires establishing a State Asset Management Agency and the existence of an Agrarian Court. The weakness of this idea lies in the realization of forming regulations that need to be in harmony with related laws and regulations. This model is necessary for synergising the roles of legislators, stakeholders, and the public based on the principle of sustainable and just management of state assets according to Pancasila.

Measuring Options for Customary Land Registration From the Perspective of East Nusa Tenggara Findings

2023-06-07T03:31:33+00:00

This article identifies various options for administering the lands of customary law communities (MHA) that have been implemented or are enshrined in laws and regulations regarding the land sector in Indonesia and sees in what cases specific administration options can be implemented and what the possible challenges are. This research refers to secondary data from findings from the Inventory and Identification of Customary Land in 2021, especially in the province of East Nusa Tenggara. The research also uses a normative approach by examining laws and regulations regarding MHA land registration in the land sector. Based on rules and regulations in the land sector in Indonesia, there are several options for administering MHA lands, namely delineation of land parcels, registration of property rights, registration of communal rights, registration in the land register, and registration in the HPL.

Setting the Readiness of Law to Implement Central Bank Digital Currency in Indonesia

2024-07-09T02:08:15+00:00

The shift in behaviour from conventional to technology-based patterns has led to technological transformation, giving rise to an emerging digital currency: crypto. Crypto assets have great potential to develop financial system inclusion and efficiency while it can pose various risks affecting economic, monetary and financial system stability. The Indonesian government's strategic step to curb the use of cryptocurrencies is to issue Central Bank Digital Currency (CBDC). To date, 109 countries have begun to adopt the use of CBDC. The adoption of CBDC in Indonesia has not yet reached the implementation stage, but is still at the research stage. In line with this, this research aims to examine the readiness of Indonesian law to welcome the enactment of CBDC and to prepare an ideal legal construction in regulating CBDC in Indonesia. This paper employs a normative juridical research method with statutory and comparative approaches. The statutory approach involves examining the norms relating to CBDC, while the comparative approach aims to compare the norms applicable in China and the Bahamas regarding the use of CBDC. The results of this study reveal that the Indonesian government's legal readiness to implement CBDC will begin to enter the experimental stage after the P2SK Law recognises CBDC as a legal payment instrument and BI as the authority authorised to manage CBDC in Indonesia. The results of the comparison with China and the Bahamas show that the determination of the CBDC distribution model and the technology used is an important aspect that needs to be considered in preparing the ideal legal construction because it relates to the technological access capabilities of the community to use CDBC.

Disparity in Jurisprudence on Breaking a Marriage Promise

2023-07-18T01:51:55+00:00

The study aims to analyse the differences in judicial decisions that classify divorce judgements as either breach of promise or wrongful acts against the Law and the legal implications of these differing judgments in divorce cases. The research adopts a normative legal approach. The findings reveal that the basis for judicial consideration in categorising cases as either breach of promise or wrongful acts varies significantly, as illustrated in two cases. In Case Number 8/Pdt.G/2019/PN.Mme, the judge ruled that the agreement between the petitioner and the respondent created a binding legal consequence, whereby the wedding vows established a binding commitment between the parties that could not be nullified, requiring good faith in fulfilment. Conversely, in Case Number 295/Pt.G/2020/PNKpg, the judge classified the respondent’s unfulfilled promise to marry the petitioner as wrongful, thus breaching the law. These differences in legal reasoning lead to legal uncertainty and the absence of legal order. The study suggests that a unified approach is essential for handling cases involving broken marriage promises, treating them as wrongful acts rather than simple breaches of contract, to enhance legal clarity and consistency in future judgements.

Strong Sustainability and Ocean Justice: Fostering Coastal Community Well-Being in Indonesia

2024-10-18T08:29:13+00:00

Poverty and environmental issues are interconnected and entangled in complex human-environment relationships. Poor people often degrade the environment to meet present needs at the expense of their future benefits. Conversely, environmental degradation exacerbates poverty by deteriorating livelihoods, income, and health. This nexus is prevalent in coastal communities’ interactions with coastal and ocean ecosystems. The severe environmental degradation of coastal habitats and oceans endangers coastal communities whose livelihoods depend on marine ecosystem services. Millions of people depend directly on marine resources as their main source of food and income. Indonesia has the second-largest coastline in the world, stretching approximately 81,000 kilometres. Unfortunately, the threat to the sustainability of marine biodiversity is getting more complex. Strengthening the capacity of coastal communities as key actors in managing and protecting coastal sustainability can ensure their well-being. This article identifies and proposes a robust regulatory framework for ocean justice in Indonesia’s coastal regions. A conceptual approach is employed to achieve this goal, with a review of pertinent legal literature and documents. In addition, the critical legal studies method will be utilised to identify potential areas for improvement. It can be argued that Indonesia has yet to achieve the robust sustainability level currently being sought. The concept of strong sustainability is grounded in two fundamental moral principles: environmental ethics and distributive justice. The legal apparatus governing ocean management must be modified to address evolving governance challenges. Although robust sustainability is not the sole determining factor of community well-being, the institutionalisation of ocean justice has the potential to facilitate the actualisation of community well-being in Indonesia's coastal regions.

The Responsibility of Transboundary Haze Pollution: The Case of Wildfire in Canada

2023-08-31T05:35:15+00:00

Responsibility for losses other countries suffer due to haze pollution is a serious issue. Transboundary haze pollution responsibility is related to the impact of smog pollution in one country and negatively impacts other countries in the vicinity. A country should take responsibility for forest fires out of respect for the country and its citizens. One example is the forest fires in Canada that spread smoke to neighbouring countries. This involves cooperation between countries to reduce the risk of transboundary haze pollution. This article used qualitative descriptive research methods. Qualitative descriptive research methods seek to answer the "what," "how," or "why" questions related to the phenomenon under study. The aim is to understand the research subject deeply and not generalise the results to the wider population. This research article concludes the principle of state responsibility, which essentially contains the obligation of states that have an impact on other countries to make reparation to the aggrieved country and restore the condition of the concerned country. In Canada, there were frequent forest fires in previous years, causing haze that spread to various countries. By understanding the consequences of forest fires and haze spread, Indonesia should enhance its prevention and management strategies by adopting approaches from Canada's forest fire management. The Trail Smelter case serves as a benchmark for addressing haze pollution, and Canada's experience offers valuable lessons for Indonesia, which also faces similar wildfire risks.

Appraisal Team: Responsibility and Principle of Fairness in Determining the Value of the Auction Object Limit

2023-11-06T07:03:28+00:00

Appraisal service companies are entities tasked with determining the true value of wealth or property for various trade transaction purposes, but they currently face a range of economic and legal challenges. This study analyses the appraisal team's principles of justice and legal responsibility in setting the minimum bid value for auctioned collateral. Employing a normative legal research method, this research draws on statutory, conceptual and case approaches supported by primary legal material. The findings show that the appraisal team is legally responsible for the values they determine for collateral auctions, with the liability encompassing three main areas, including civil liability. If the team is proven to have violated the provisions of the auction as mentioned in PMK Number 228 / PMK.01 / 2019 concerning Public Appraisers, they may face administrative sanctions, such as written warnings, restrictions on certain appraisal services, suspension of permits, or permit revocation. Furthermore, the Government has provided legal protection to auction buyers with good faith who participate in auctions in compliance with applicable regulations. Fairness must be achieved and upheld through just procedures to ensure fair results, giving all parties equal standing and rights in the auction process.

Hospital Liability for Negligence of Medical Personnel Found in Hospitals Following the Issuance of the Constitutional Court Decision Number 82/PUU-XIII/2015

2025-01-07T01:35:24+00:00

As an important element in welfare efforts, everyone has the right to health services, like those provided by hospitals seeking to treat visiting patients. This measure certainly entails several elements, including health workers and medical personnel as in line with the Constitutional Court Decision Number 82 / PUU-XII / 2015, declaring Article 11, Paragraph (1) letter a of Law Number 44 of 2009 concerning Hospitals no longer valid, thus removing the existence of doctors and dentists as health workers. Under this decision, Doctors and dentists are identified as medical personnel. Article 46 of Law Number 44 of 2009 concerning Hospitals regulates that in the event of a malpractice that causes harm by health workers, a hospital is responsible for this misconduct unless the practice is performed outside of the hospital. However, doctors and dentists are no longer identified as health workers under the decision. In other words, any negligence committed by doctors and dentists should no longer hold the hospital liable This research employs a normative method supported by statutory and case approaches, while the legal materials were analysed based on descriptive-analytical methods

Legal Aspects of Telemedicine and Prevention of Malpractice Risks

2023-02-15T03:59:55+00:00

This study aims to determine the practice of implementing telemedicine in Indonesia and examine the legal formulation of telemedicine implementation to prevent malpractice risks to patients. The study employs a normative juridical method with a statutory and conceptual approach. Secondary data is utilised, including primary (legislation), secondary (literature reviews), and tertiary legal materials (dictionaries) relevant to telemedicine and its legal implications. The findings reveal that Indonesia currently lacks specific regulations governing telemedicine. The existing Health Minister Regulation Number 20 of 2019 is inadequate to comprehensively guide telemedicine practices in the country. As a result, the implementation of telemedicine carries significant legal risks. Based on established principles of medical practice, telemedicine poses malpractice risks because doctors do not physically examine patients. Furthermore, the current regulations fail to address the primary aspects of telemedicine comprehensively, exacerbating the risk of malpractice and creating legal uncertainty when malpractice occurs. To address these issues, it is crucial to develop specific telemedicine regulations. These regulations should define the doctor-patient relationship, outline the rights and obligations of all parties, ensure the protection of electronic medical records, establish criminal sanctions for violations, and create an independent supervisory body to oversee telemedicine practices.

Paradigm of Recodification of Corruption in Criminal Code Against its Designation as Extraordinary Crime

2023-11-23T07:02:15+00:00

In December 2022, the Government and DPR passed Law Number 1 of 2023 concerning the Criminal Code, setting out provisions on corruption previously regulated by special laws. The inclusion of corruption raises the question of whether including articles on corruption in the New Criminal Code will eliminate the title of extraordinary crime and its specificities. This research analyses the effect of the recodification of corruption articles in the New Criminal Code on the specificity of corruption and its designation as an extraordinary crime. This research uses normative research methods by examining the theory of various formal laws and regulations to answer legal issues. The results of his research are as follows: first, the recodification of corruption articles into the New Criminal Code is viewed from the perspective of Lawrence M Friedmann’s Legal System Theory. From the standpoint of legal substance, corruption does not terminate its designation as an extraordinary crime. From the legal structure perspective, corruption may terminate the title of extraordinary crime because there are restrictions on the KPK’s authority to calculate state financial losses. From the standpoint of legal culture, corruption remains an extraordinary crime. Second, the existence of the New Criminal Code affects the concept of punishment regulated in the Anti-Corruption Law, namely, the imposition of the death penalty regarding the death penalty regulated in the Anti-Corruption Law and changing the special minimum threat of Article 2 of the Anti-Corruption Law, which is lower from four to three years.

Reviewing Victimological Aspects and the Effectiveness of Legal Protection in Cases of Commercial Sexual Exploitation of Children

2023-09-12T03:45:15+00:00

This research is triggered by the rampant cases of commercial sexual exploitation of minors. Based on data from UNICEF, as many as 1,200,000 (one million two hundred thousand) children throughout the world are trafficked per year, with many factors causing this crime. Therefore, this research aims to examine in more depth the crime of commercial sexual exploitation of children by focusing on determining the victimological condition of the victim and also examining the effectiveness of legal protection against CSEC. This research method employs normative juridical research methods for collecting legal materials. Secondary legal sources were obtained by reviewing and studying various reference books, scientific articles and journals, while the primary ones referred to a statutory approach based on applicable laws and regulations and a case approach for criticising a case. With this research, it is hoped that the government can strive to protect CSEC victims through supervision, protection, prevention, treatment, rehabilitation, and a deterrent effect on the perpetrators. The role of international organisations is also needed to increase awareness and sensitisation of the community and children vulnerable to CSEC crimes and also as a way to help the victims' psychological recovery.

Preventing Personal Data Misuse: Legal Protection in Online Loans

2023-08-11T07:26:55+00:00

The rapid growth of online lending platforms in Indonesia has raised concerns regarding personal data misuse. This research examines the legal protections available to protect personal data in online lending by emphasising the importance of strict regulations and legal enforcement mechanisms. This research also explores how existing laws, including the Indonesian Personal Data Protection Law, exist. This normative legal research employs a statutory approach. This research highlights gaps in current legislation by analysing cases of personal data breaches and unethical practices. It offers recommendations for strengthening the legal framework to prevent misuse of personal information. The research concludes that a stronger legal approach is needed to protect consumers from potential harm from online lending and promote trust in digital financial services.