Indonesian Court Research Articles

Constitutional Review of ASEAN Charter and Maastricht Treaty

This journal will discuss how the role of constitutional courts in Indonesia and France in reviewing the constitutionality of the ratification law of an international treaty. While both Indonesia and France possess a Constitutional Court/Council, both of them have different principles regarding the constitutional review of international treaties. This paper uses normative research with a descriptive analysis approach. We found that in practice, both Indonesia and France can constitutionally review the ratification of an international treaty. Although the Constitutional Court in Indonesia has never annulled the ratification of an international treaty, there remains the possibility of a treaty being ratified and later revoked by the process of judicial review. Meanwhile in France, while judicial review can conflict with the Constitution, in the case of the Maastricht Treaty this led to constitutional amendments to accommodate Maastricht Treaty with the Constitution instead of annuling the treaty altogether

Implementation of Legal Quality Audit on Electronic Civil Trial Procedures (E-Court)

Currently, electronic court (e-court) systems are being implemented in several countries. The Supreme Court in Indonesia has also been adopted e-court for legal administration tasks, such as determining judicial panel compositions. A qualitative approach is proposed to explore the implementation itself. The concept and characteristics of the Special Legal Quality Audit System for electronic justice arrangements (E-court) encourage the realization of an effective and fair Civil Justice System. The concept in this context is a philosophical aspect that serves as the source of the Legal Quality Assurance Paradigm, including: defect-free (deficiency), customer satisfaction, and continuous improvement without end. This concept is elaborated in parameters that are measured or evaluated to determine the quality level and make improvements to increase the level of quality. The quality parameters used by the researcherinclude: product reliability, minimal cost, accessibility, security, service friendliness, systematicity, and keeping pace with global developments.

Shifting Paradigms: The Controversy and Complexity of LGBTI Protection in Indonesia as the Biggest Muslim Country

The existence of Lesbian, Gay, Bisexual, Transgender, and Intersexual (LGBTI) as a legal subject in a religious community like Indonesia is very problematic. When religious values control a community, the members will use their holy books to measure whether any commotion or condition is tolerable. Collisions between the law of religion (such as Sharia Law of Muslims) and national law are sometimes unavoidable. Most conservative religious values may not protect and acknowledge the existence of LGBTI people, while national law must recognise the ratified international conventions, especially regarding human rights. It creates a different treatment between national law and religious law. Protection of the rights of LGBTI in Indonesia is barely reported. This study will be important to share how Indonesia copes with LGBTI legal problems and protections. The method of this study is a juridical normative study, by evaluating Indonesian positive law, the living law ruled by the Indonesian Court Decrees, and any decree or decision made by Indonesian executive and judicative bodies, which become the basis for determining the existence of rights and protections of LGBTI people. Classification of the protection from various sectors of laws will be identified, to conclude the protection level of LGBTI people in Indonesian law. Keywords: LGBTI; Indonesia; Positive law; Religious values.

Climate change related litigation in Indonesia

Indonesia contributes to greenhouse gas emissions but is also vulnerable to climate change. However, the country does not have a single, overarching law explicitly addressing climate change. Climate litigation is now used in Indonesia to hold governments and corporations accountable. Here, I review the courts’ decisions for criminal and civil climate change-related cases between 2010 and 2020 and highlight trends and examples of case studies, driving factors, and impacts of climate litigation cases in Indonesia. I show that 112 climate change-related cases were brought to Indonesian courts, most of which were criminal cases concerning forestry or forest fires. In addition, there were a number of civil court cases. The cases use phrases concerning climate change in their main claim, argument, evidence, expert witness arguments, and judgments. They are regarded as incidental climate change litigation cases. However, these cases are essential in developing climate change litigation in Indonesia because they open up a discussion of climate change issues in the Indonesian courts and public media.

OVERCOMING DUALISM: THE IMPORTANCE OF CONSOLIDATING LAW AND REGULATION TESTING IN INDONESIA

This article highlights the significance of unifying the testing of all laws and regulations under the authority of the Constitutional Court in Indonesia. Currently, the testing of laws and regulations is divided between two state institutions, namely the Constitutional Court and the Supreme Court, resulting in dualism in the evaluation of laws and regulations. Through a normative-juridical approach, examining existing laws and theories, this article reveals that the dualism of testing laws and regulations is a problem that needs to be addressed. The problem arises from the differences in decision outcomes between the Constitutional Court and the Supreme Court. The two institutions employ different benchmarks for material testing, with the Supreme Court relying on legislation and the Constitutional Court drawing on the 1945 Constitution of the Republic of Indonesia. The importance of unifying the testing of all laws and regulations lies in the fact that the unintegrated testing system causes confusion, creates institutional conflicts between the Constitutional Court and the Supreme Court, and results in a lack of synchronization between laws and regulations from lowest to highest. Therefore, it is essential to conduct integrated testing of all laws and regulations, with the Constitutional Court serving as the authority responsible for this task. Notably, an increase in the number of Constitutional Court judges is necessary to achieve better development of laws and regulations testing in the future.

Gender Equality in Customary Inheritance Law in Indonesian Court Decisions

Gender Equality in Customary Inheritance Law in Indonesian Court Decisions

Reconstruction of Marriage Law: Judges’ Progressive Reasoning Based on Maqāṣid in Addressing Divergent Interpretations in Indonesian Courts

Reconstruction of Marriage Law: Judges’ Progressive Reasoning Based on Maqāṣid in Addressing Divergent Interpretations in Indonesian Courts

The Nature and Existence of Jurisprudence in State Administrative Courts in Indonesia

The Nature and Existence of Jurisprudence in State Administrative Courts in Indonesia

Model for resolving election violations through Indonesian Election Body and Constitutional Court

This study formulates a model for resolving disputes over election violations through the Election Supervisory Body and the Constitutional Court in Indonesia. This research analyses juridical and normative theories, policies, and legal decisions, as well as studies of cases of election violations in 2014 and 2019. This research method uses qualitative research with a grounded theory approach and a normative juridical approach. The data sources comprise primary and secondary legal materials. The results of this study show that 1) Problems with violations of the electoral process and disputes over election results have not been resolved properly. 2) The model of resolving violations of the electoral process and disputes over election results is with a settlement model approach through the Application of the Critical Attitude Model of Public Militancy and Law Enforcement Militancy by the Election Supervisory Body and the Constitutional Court.

Determination of Nasab of Children Outside of Marriage in the Islamic Legal System: The Role and Decisions of Religious Courts in Indonesia

Determination of Nasab of Children Outside of Marriage in the Islamic Legal System: The Role and Decisions of Religious Courts in Indonesia

The Idea of Implementing Spiliada Principle for Indonesian Court in Hearing Private International Law Cases

The Idea of Implementing Spiliada Principle for Indonesian Court in Hearing Private International Law Cases

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

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.

Tracing The Trialectic: The Process and Influence of Three Laws in The Establishment of Religious Courts in Indonesia

This article discusses the legal trialectic in establishing the Religious Courts in Indonesia. Since its establishment in 1882, the Religious Courts have not fully represented Islamic law as its primary source. To trace this trialectic, the author uses Ebrahim Moosa's theoretical framework of "transculturation, counterpoints, social imaginary, networks, and legal orientalism." For this purpose, the author proposes two problem formulations. First, what is the process of trialectic attraction between Islamic law, positive law, and customary law in the establishment of the Religious Courts? Second, what is the extent of the influence of positive and customary law in limiting the role of Islamic law? The author offers two novelties, namely methodological novelty in Indonesian Islamic studies, by adopting Ebrahim Moosa's theory. Finally, the conclusive novelty is that the Religious Court is not derived from Islam but from the trialectic of three laws. The practical contribution of this study is to re-question the roles of religious courts in formalizing and implementing Islamic law in Indonesia, with the hope that religious courts will become a dialectical space where Islamic law continues to develop so that it can make a practical contribution to contemporary Indonesian society.

The Constitutional Court and Forest Tenure Conflicts in Indonesia

With regard to access to land and forest resources, forestry legislation maintains an imbalance between the state, corporations, and local communities. Since the colonial era, forestry regulation has facilitated restrictions on the ability of local communities to benefit from land and forest resources, while also concentrating power in the hands of the state. To uphold state ownership, forestry law criminalizes customary practices, putting local communities at risk. In this sense, conflicts between local communities, corporations, and government agencies arise because of structural issues in the legal framework of laws and regulations that undermine the land rights of local communities. The establishment of the Constitutional Court in Indonesia in 2003 has enabled local communities and NGOs to challenge the Forestry Law. They use the Constitutional Court to support the resolution of forestry tenure conflicts. This article examines the extent to which the Constitutional Court can contribute to the resolution of forest tenure conflicts through judicial review of forest laws. This article discusses twelve Constitutional Court decisions regarding judicial review of the Forestry Law and the Law on Forest Destruction Prevention and Eradication. We found that the Constitutional Court has made a positive contribution to addressing the deficiency of forest legislation regarding local and customary land rights. The implementation of Constitutional Court’s ruling is not, however, a matter of self-implementation. The ruling of the Constitutional Court will only have significance if it is continuously promoted by various stakeholders in support of forest tenure reform to facilitate the resolution of forest tenure conflicts.

Transforming the Judiciary: Unveiling the Influence of Interpersonal Communication on Indonesia's Court System

Public service in government institutions, particularly in one of court in Indonesia, has become the primary focus in addressing negative stigma and public complaints related to service performance and efficiency. During the pandemic, technology integration emerged as a solution, with the execution of the comprehensive One-Stop Integrated Service Program (PTSP) and drive-thru services at one of the courts in Indonesia. This research aims to measure the influence of interpersonal communication between officers and lawyers on service quality in PTSP and drive-thru services, as well as to identify the role of technology in these processes. The research methodology employs multiple regression analysis to comprehend the cause-and-effect relationship between interpersonal communication variables and service quality. Focusing on openness, empathy, supportive attitude, positive attitude, and equality, this study also considers the impact of organizational culture and the role of lawyers as key stakeholders. The expected results aim to provide recommendations for enhancing public services at one of the courts in Indonesia, including technology development, staff training, and organizational culture changes. The research hypothesis states that interpersonal communication significantly influences service quality at the court. The findings of this research are intended to contribute to a deeper understanding of the dynamics of public service in government institutions.

The Existence of Tax Courts in Indonesia From the Colonial Era, Independence, to Reformation

The source of the State Budget is Taxes. Tax is a mandatory contribution that is coercive because it is regulated by law. One of the tax collection systems is self-assessment, where taxpayers are given the freedom to pay and report their taxes independently, the fiscal officer supervises and checks the tax returns reported by taxpayers every year. This difference in opinion on the results of the examination between taxpayers and tax officers is what raises the problem of tax disputes. The problem of tax disputes has existed from the Dutch colonial era to the present. The Tax Court is the body that decides tax dispute cases, the name and duties of the tax court have changed from time to time and with the decision number 26/PUU-XXI/2023 concerning the Tax Court. The authority of the tax court changed to the full authority of the Supreme Court. This article concludes that the Tax Court developed over time, and along with tax reform the Tax Court also underwent reform with the transfer of organizational, administrative, and financial coaching authority to the Supreme Court (MA). With this transfer of authority, it is hoped that the Tax Court can decide tax dispute cases fairly and have legal certainty for the parties to the dispute.

The Nature and Existence of Jurisprudence in State Administrative Courts in Indonesia

Objective: This study aims to examine the effectiveness of jurisprudence in resolving cases by judges to achieve legal certainty, justice, and utility in their decisions. Theoretical Framework: Drawing on legal principles and legislative frameworks such as Article 28 of Law No. 48/2009 on Judicial Power, Article 22 AB (Algemene Bepalingen Van Wetgeving), and Article 1917 of the Burgerlijk Wetboek (BW), this research explores the role of jurisprudence as a source of law and its significance in the judicial process. Methodology: This research employs a qualitative approach, utilizing legal analysis and case studies to investigate the application of jurisprudence by judges in resolving cases. Data collection involves examining legal documents, court decisions, and scholarly literature related to the topic. Results and Conlusion: The findings indicate that jurisprudence plays a crucial role in enhancing legal certainty, justice, and utility in judicial decisions. Judges utilize jurisprudential principles as guiding frameworks to ensure consistency and fairness in their rulings, thus contributing to the effectiveness of the legal system. this study highlights the importance of jurisprudence in achieving the objectives of the judicial system. By incorporating jurisprudential principles into their decision-making processes, judges can uphold legal certainty, promote justice, and maximize the utility of their rulings, ultimately strengthening the rule of law.

The Application of General and Criminal Confiscation Laws in Bankruptcy Cases in Indonesia and Australia

There is often an intersection between general confiscation and criminal confiscation, one of which is caused by disharmony in confiscation arrangements between general confiscation and criminal confiscation. This study examines the comparison of the application of general and criminal confiscation law in bankruptcy cases in Indonesia and Australia and finds out whether the method of resolving general and criminal confiscation disputes according to Australian bankruptcy law can be applied in Indonesian bankruptcy law. Applying normative legal research, this study revealed that the resolution of disputes between vesting of property in bankruptcy law and confiscation orders in the law of proceeds of crime prioritizes legal certainty. This is evidenced by the provisions of Articles 6C, 58, 58A of the Bankruptcy Act 1966, which provide a detailed explanation of when and at what times there are exceptions to the application of vesting of property to the property of bankrupt debtors. The practice of applying dispute resolution between the institution of confiscation in bankruptcy law and confiscation for proceeds of crime according to bankruptcy law in Australia has been practiced several times by the Commercial Court in Indonesia.

Comparison of Transfer Pricing methods and their application in disputed tax cases in Indonesian courts

Transfer pricing is a trending topic of taxation in various worlds, not least in Indonesia. Directorate General of Taxation is very aggressive to supervise and monitor the practices of transfer pricing conducted by the taxpayer, because it is not just a case of fictitious tax refunds and tax realtor practices that erode the potential for state revenue from taxes, but the practice of tax evasion in the process transfer pricing is also considered a lot of harm to tax revenue. Transfer pricing practice is actually a common practice and commonly practiced by companies group companies. However, this can be a crucial issue when setting transfer prices is not in accordance with the principle of fairness and business prevalence (PKKU / arm's length principle) which regulated in the Indonesian transfer pricing regulations.. The taxpayer is given the freedom to use their own discretion in deciding the most appropriate method of measuring the transfer price. However, this leads to inconsistencies in the methods applied to arm's length transactions similar by entities from similar industries. Loopholes in this area are vulnerable to tax evasion practices since decades ago. This paper aims to compare the available methods for measurement transfer pricing.

Dispute Settlement of International Trademark on Intellectual Property Rights (Case Study: Decision Number 557 K/PDT.SUS-HKI/2016)

<p><em>Intellectual Property Rights (IPR), namely rights resulting from the impact of thought patterns resulting in products that are beneficial to legal subjects. However, there are still many problems that arise in IPR such as brand theft, brand plagiarism and so on. One of them is the case of Laverana, a cosmetic product from Germany. This brand was plagiarized by Irawan Gunawan to be used as a product brand in Indonesia. On top of these things, Laverana also felt disadvantaged. Therefore, this article aims to provide an understanding of the importance of protecting IPR and how to resolve international trademark disputes. The research method used in this research itself is a normative-empirical legal research method and a literature approach as well as legal protection theory and effectiveness theory in this brand plagiarism dispute case. The resolution of the Intellectual Property Rights dispute in the Laverana case was pursued through litigation, namely the Indonesian court to try the defendant, namely Irawan Gunawan. The final decision obtained from the court stated that the party from Germany or the original owner of the Laverana Brand won. This resulted in Irawan Gunawan (defendant) having to withdraw from the brand and being charged legal fees of Rp. 5,000,000 (5 Million Rupiah</em><em>)</em><em>.</em></p>