Arena Hukum

THEO-PROPHETIC JURISPRUDENCE: TRACING THE GENEALOGY OF THE ISLAMIC LAW’S FORMATION AND GROWTH IN RASULULLAH ERA

Moh Anas Kholish — 2023-08-31

This paper concisely and analytically presents the history of tasyri', or the formation of Islamic law in the Prophet's era. By using the term "Theo-Prophetic Jurisprudence," this paper also provide a response and rebuttal to the view that Islamic law is a product of Muhammad's jurisprudence. The results of this qualitative research with conceptual and historical approaches indicate that the formation of Islamic law began in the prophetic period. The period of the formation of Islamic law or the Prophet Muhammad's jurisprudence is divided into two phases, namely the Mecca phases which includes everything related to belief, morals-ethics, and fiqh (law); and the Medina phase which is more oriented to the formation of law, including social situations or the social construction phase. Islamic law or the Prophet Muhammad's jurisprudence is not a product of Muhammad's ideology like some scholars view that Islamic law does not have theological and juristic nuances but only historical-sociological aspects.

IMPLEMENTATION OF ONLINE REGISTRATION E-COURT AT INDONESIA RELIGIOUS COURTS

Mukmin Muhammad — 2023-08-31

The purpose of this study is to know the pattern of service at the Barru Religious Court Office during the Covid-19 pandemic and the implementation of online case registration E-Court of physical distancing at the Religious Court Office during the pandemic. This qualitative research include observation, interviews, documentation. Data analysis involve data reduction, data presentation, and conclusion drafting. The result shows the implementation used in the registration of the first case is online case registration, the second is to get a down-payment interpretation online, the third can make online payments, the fourth can conduct trials online (litigation), the fifth can view calls online, and the sixth can make decisions online. The case registration E-Court has been carried out following PERMA No.1 of 2019 about the electronic case of registration. In particular, at a time when Indonesians are growing more concerned about the Covid-19 virus outbreak, this PERMA is extremely appropriate to be carried out.

PRINSIP MASLAHAT AL-MURSALAH DALAM PRAKTIK PENGELOLAAN WAKAF PADA NAZHIR UNIVERSITAS AIRLANGGA

Prawitra Thalib — 2023-08-31

This paper aims tp discuss the legitimacy of AIW at Nazhir Airlangga University from the perspective of the waqf law and whether it has complied with the principle of maslahah mursalah, considering that various cases of waqf property do not run optimally, are productive, are not used or are transferred to third parties. There is an interesting phenomenon, namely that at Nazhir, Airlangga University is the only one and the first time an Indonesian State University has received a Nazhir certificate to manage and develop waqf. In this case, it is interesting to discuss the practice of waqf at Nazhir Airlangga University according to the Waqf Law. This normative research uses statute approach and the conceptual approach. The results show that in practice Nazhir Universitas Airlangga in carrying out his waqf pledge practice does not use AIW un-authentic. That is, Nazhir Airlangga University in carrying out his waqf practice in terms of his pledge deed is in accordance with the procedures in accordance with Law Number 41 of 2004 concerning Waqf.

PERBANDINGAN DESAIN PENGUJIAN KONSTITUSIONAL PADA MAHKAMAH KONSTITUSI FEDERAL JERMAN DAN INDONESIA

Tanto Lailam — 2023-08-31

This research is based on the weaknesses of constitutional review design in Indonesian and how the best design in Germany. This normative legal research is analysed using legislation and comparative approaches. The results showed that the German and the Indonesian Constitutional Courts had the same design and practice of constitutional review. The German Constitutional Court has complete authority, namely the abstract judicial review, concrete judicial review, and constitutional complaints. While the Indonesian Constitutional Court is only given the abstract judicial review and does not have a concrete judicial review and constitutional complaint authority, in practice, some applications are characterized by both. The design of abstract judicial review between the German and Indonesian Constitutional Courts has the same object of disputes but differences in the party applying. The object of the dispute on the concrete judicial review at the German Constitutional Court is the implementation of laws relating to court cases. The objects of petitions for constitutional complaints are judicial decisions, laws, and others.

REFORMULATION OF REGULATIONS ON INDONESIAN CITIZENS WHO HAD JOINED THE ISLAMIC STATE OF IRAQ AND SYRIA (ISIS)

Riana Susmayanti — 2023-08-31

The repatriation of ex-ISIS members to Indonesia will have an impact on the community, because previous jihadi alumni from Afghanistan carried out terrorist bombings in several locations after they returned to Indonesia. This research will analyze the classification of Indonesian citizens who had joined ISIS; the Indonesian citizens who had joined ISIS according to Indonesian regulations and the reformulation of regulations on Indonesian citizens who had joined ISIS. This normative juridical research uses statutory approach and conceptual approach. The results of this study shows that the classification of Indonesian citizens who had joined ISIS based on hierarchy in the organization and concerned involvement in ISIS, the regulatory violations committed by Indonesian citizens by joining ISIS, and the urgency of changing the citizenship law that applies to Indonesian citizens who join ISIS.

INVESTMENT COURT SYSTEM SEBAGAI ALTERNATIF PENYELESAIAN SENGKETA PENANAMAN MODAL ASING

Fatma Muthia Kinanti — 2023-08-31

Investment Court System (ICS) proposed by the European Union (EU) has been ratified through Bilateral Investment Treaty (BIT) between the EU and several partner countries such as Canada, Vietnam and Singapore. A study is needed to get an idea on the ICS mechanism. This is a normative research. The result shows that although there is a mechanism that is not in accordance with the concept of arbitration, the ICS decision is enforced as an arbitration award and is subject to the 1958 New York Convention. Indonesia as one of the countries currently still negotiating with the EU in the formation of an FTA is also still reviewing the adoption of ICS into the text agreement. In addition, although the background and objectives of the ICS are positive, there are still some points of weakness in the provisions of the ICS that will result in obstacles in their implementation which can be seen from the legal, political and technical side.

POLEMIK PESANGON DALAM PERSPEKTIF UU OMNIBUS LAW

Elvira Fitriyani Pakpahan — 2023-08-31

This paper aims to assist in providing understanding to both entrepreneurs and workers or workers, as well as the general public that the Omnibus Law which is considered detrimental to each party was formed by the government with several other alternatives that can be used to deal with problems that arise in the scope of work, and can help the country in improving its economy, one of which is by attracting the attention of foreign investors to be interested in investing in this country. This research is uses qualitative methods through qualitative descriptive procedures. The Omnibus Law itself can be good news for the general public because it can be a solution to severance pay cases for workers who are victims of termination of employment.

GOOD FAITH VERSUS BAD FAITH IN MITIGATING THE COVID-19 PANDEMIC IN INDONESIA

Yafet Yosafet Wilben Rissy — 2023-08-31

The COVID-19 pandemic has caused a real economic crisis across the globe, including Indonesia. To overcome this critical issue, the Indonesian President issued Government Regulation in Lieu of Law No. 1 of 2020 which was later stipulated as Law No. 2 of 2020 (the 2020 COVID-19 Emergency Law). This study applies a doctrinal legal research method. The result of the study shows that Article 17 of the 2020 COVID-19 Emergency Law grants the government officials the right of immunity to not be sued legally as long as their actions are in accordance with the good faith principle. Unfortunately, this law does not explain the meaning of good faith, so that it can become a grey area for the abuse of power. It is recommended that the government officials should be mindful in exercising their extraordinary powers based on the principle of good faith such as honesty, loyalty, trust, honour, a lack of fraudulent actions and conflict of interests, and adherence to the applicable laws to avoid an abuse of power and corruption in Indonesia.

PENGHILANGAN PAKSA SEBAGAI KEJAHATAN TERHADAP KEMANUSIAAN (TELAAH PUTUSAN PRA-PERADILAN III ICC ATAS SITUASI BURUNDI)

Abdul Munif Ashri — 2023-08-31

Enforced disappearance could be qualified as a crime against humanity. However, international human rights law (IHRL) and international criminal law (ICL), have different definitions of enforced disappearance. It can be reviewed by the different formulations between the ‘ICPPED’ and the Rome Statute of the ‘ICC’. Rome Statute adds several elements to the enforced disappearance definition, such as ‘specific intent’ by the individual perpetrators, ‘temporal element’, and ‘political organization’ as potential actors. And the Pre-Trial Chamber (PTC) III Decision on ‘Burundi Situation’ (2017) could be a significant reference. By the doctrinal research through statute and conceptual approach, this article concludes that the PTC III Decision reflects the very close relationship between those two different branches of law, as PTC III still refers to IHRL instruments to fill the legal gap in the interpretation of enforced disappearance within the Rome Statute.

MENGGALI MAKNA PEMAAFAN HAKIM BAGI ANAK MELALUI RATIO LEGIS PASAL 70 UNDANG-UNDANG SISTEM PERADILAN PIDANA ANAK

Nurini Aprilianda — 2023-08-31

This research aims to discover the meaning of pardon given by the judge as governed in Article 70 of Law Number 11 of 2012 concerning the Judicial System of Juvenile Crime (henceforth referred to as Juvenile Law). The absence of further elucidation of Article 70 of Juvenile Law interrupts the settlement of the case handled by judges. Therefore, the value that the pardon carries in the Article needs to be further examined. This normative research uses statutory and conceptual approaches. The result shows that indicating that punishment, referring to Article 70 of Juvenile Law and imposed on a child, is given as the last resort that should take into account human values and the justice for children, philosophical bases, the values of Pancasila and the 1945 Constitution of the Republic of Indonesia with the principle of child protection referred to as a benchmark.