Formal Legal Framework Research Articles

LAW ENFORCEMENT IN THE INDONESIAN CONSTITUTIONAL SYSTEM IS IN ACCORDANCE WITH THE LAW THE ENFORCER’S CONSCIENCE

The purpose of this research is to analyze and evaluate the role of law enforcement in the Indonesian constitutional system, specifically focusing on how the enforcement of laws aligns with the personal conscience and ethical judgment of law enforcers. The study utilizes secondary data gathered through literature reviews, drawing from primary, secondary, and tertiary legal materials, such as legislation, books, journals, and articles. The collected data is analyzed following the Miles and Huberman (2014) model, which includes processes of data reduction, data display, and data verification, to derive conclusions pertinent to the research questions. It sheds light on how ethical considerations influence decision-making, offering insights into the moral dimensions of the law enforcement beyond formal legal frameworks. Furthermore, this study contributes to discussions on judicial integrity and accountability, providing a foundation for evaluating how personal conscience impacts the fairness and effectiveness of law enforcing. It also offers practical recommendations for strengthening the ethical standards and professional judgment of judicial officials in Indonesia. Comparative studies on how different countries' judicial systems integrate human rights and democratic values into their law enforcement structures could provide valuable insights for reforming Indonesia's judicial system to meet global standards of justice and fairness.

Shaping shores: An exploration of the interplay between law, spatial ontologies and the power to plan at Milnerton, Cape Town

The landscape of coastal planning is being transformed by the emergence of new scales of informal planning both alongside and between established statutory planning frameworks. As informal planning arrangements seldom operate within an institutional vacuum, they are frequently confronted by the path-dependent influence of pre-existing statutory planning institutions. However, there remains a marked dearth of knowledge surrounding the interplay between formal legal planning frameworks and informal planning arrangements at the coast. In response to this lacuna, the current paper endeavours to expand the existing comprehension of the influence of formal legal planning frameworks on informal planning processes at the coast by amalgamating legal geographical insights with the expanding discourse surrounding the function of actors' ontological understandings of space in structuring power relations and discursive interaction within planning processes. These insights are applied to a focussed case study of the operation of an informal planning process, the Milnerton Erosion Forum, at Milnerton, a coastal suburb of Cape Town, South Africa. The empirical findings presented in this article demonstrate the involvement of legal planning frameworks in constituting space and structuring power dynamics among actors at Milnerton, as well as the ways in which spatialised legal power is mobilised to influence socio-spatial decision-making within informal planning processes through actors’ ontological understandings and representations of places-to-be-planned. Through visibilisng the dialectical relationship between law, space and the power to plan at Milnerton, this article offers nuanced insights into the complex interplay between legal planning frameworks and informal planning practices at the coast.

Islamic Legal Perspectives on Refugee Protection and Welfare: A Case Study of Malaysia

This article examines the refugee crisis in Malaysia from the perspective of Islamic law, addressing the challenges arising from the absence of a formal legal framework for refugee protection. Through a legal normative approach and in-depth interviews with Islamic authorities and NGOs, this study investigates Islamic principles related to refugee welfare. The findings of this study reveal that Malaysia has an ethical and legal responsibility under Islamic law (domestic and legal normative) to protect and support refugees despite not signing the 1951 Refugee Convention. This study emphasises the potential role of Islamic authorities as part of the government body in administering, coordinating, and implementing Islamic welfare efforts to meet the needs of refugees. By aligning refugee support with Islamic values, Malaysia can improve its ability to provide comprehensive care and protection to refugees, fulfilling religious and humanitarian duties. This integrated approach could serve as a model for other Muslim-majority countries, promoting a more inclusive and compassionate response to the global refugee crisis.

The Legal Culture of Samin Community of Family Law in Central Java

This article seeks to examine the legal culture of the Samin community in relation to their preferences in family law, the persistence of the customary law in the community, and the transformations that have taken place in Samin family law. The data of this article is derived from an ethnographic study conducted at various Samin villages in Central Java between 2022 and 2023. Information was gathered via in-depth interviews, observation, and document analysis. The study's findings suggest that the government does not officially recognize marriage within the Samin community. However, the Samin family law has undergone a significant transformation. It underwent a substantial change which involved the government officially acknowledging the Samin beliefs. The research findings reveal symptoms of the Samin family law which underwent a transformation from customary law to local fiqh characterized by a mystical style. Efforts are being made to establish formal legal frameworks that accept the belief in God Almighty and incorporate legal practices. The legal negotiations led to the emergence of natural law plurality which in practice, is influenced by politics, social, and culture.

Legal Vacuum in Indonesian Administrative Law: Urgency of Policy Regulation

This study delves into the critical need for explicit policy regulation within the Indonesian Government Administration Law (Law Number 30 of 2014), addressing a significant legal vacuum. Despite the law encompassing regulations related to discretion, it notably lacks specific terms or phrases for 'beleidsregel' (policy regulations), leading to legal uncertainties. Employing a normative legal research methodology, the research utilizes statutory and conceptual approaches to explore the interplay between the principle of discretion (freies ermessen) and policy regulations in the context of state administrative law. The findings reveal that while the principle of discretion and policy regulations are distinct entities, they are inextricably linked. The principle of discretion provides the foundational authority for state administrative officials to establish policies, whereas policy regulations represent the formal embodiment of these policies. The absence of beleidsregel in the current legislation leads to reliance on expert opinions (doctrine) and varying legal interpretations, fostering legal uncertainty (rechtsonzekerheid) and potential chaos (rechtsverwarring) in government administration. The study highlights the urgent need to regulate policy regulations within the Government Administration Law to ensure legal certainty and prevent administrative chaos, emphasizing the importance of formal legal frameworks in guiding and controlling the application of policy regulations by state officials. This research underscores the necessity of legislative reform to address the existing normative vacuum and stabilize the legal environment for effective governance in Indonesia.Highlights:
 
 The study emphasizes the lack of specific policy regulation terms in Indonesian Government Administration Law, leading to a legal vacuum.
 It highlights the crucial link between the discretion principle and policy regulations, underscoring their interdependence in state administrative law.
 The research identifies the urgent need for legislative reform to provide legal certainty and prevent administrative chaos due to the current absence of policy regulation guidance.
 
 Keywords: Policy Regulations, Legal Vacuum, Indonesian Administrative Law, Discretion Principle, Government Administration

Liminal waters, contested imaginaries: Andean comunas and Ecuador’s new water law

ABSTRACTThis article examines the impacts of Ecuador’s 2014 water law on comunas ancestrales (traditional communal Andean villages), highlighting a disconnect between formal legal frameworks and day-to-day implementation. We focused on the case of Oyacoto, a peri-urban, Indigenous and Mestizo comuna struggling to maintain water management practices and identity while updating critical infrastructure. Using a qualitative approach, we studied the political and gender dimensions of responding to new water policy. Our findings highlight the challenges that small agricultural communities face to preserve community-based water planning within the constraints of centralized national policy.

The Role of Customary Law in Natural Resource Management: A Comparative Study between Indonesia and Australia

Natural resource management is crucial for sustainable development, especially in regions abundant in biodiversity and natural assets. Nations worldwide face the challenge of managing their resources effectively while promoting economic growth, social justice, and environmental conservation. Customary law plays a significant role in resource governance, particularly in countries like Indonesia and Australia, where indigenous communities have deep-rooted connections to the land and its resources. This comparative study explores the role of customary law in natural resource management in Indonesia and Australia. Both countries possess diverse ecosystems and substantial indigenous populations, offering valuable insights into the interaction between customary and state legal systems in resource governance. In Indonesia, customary law, known as adat, influences resource management practices, albeit with variations in recognition and integration into formal legal frameworks. Conversely, in Australia, the colonization process has disrupted traditional governance structures, leading to ongoing struggles for indigenous rights and recognition. By examining case studies, legal frameworks, and policy initiatives in both countries, this study aims to identify challenges and opportunities for integrating customary law into broader governance frameworks and promoting more equitable and sustainable resource management practices. Additionally, this comparative analysis contributes to scholarly debates on the role of customary law in contemporary legal systems and its implications for environmental governance, indigenous rights, and social justice. Interdisciplinary perspectives from legal studies, anthropology, environmental science, and development studies offer valuable insights for policymakers, practitioners, and indigenous communities striving for more inclusive and effective resource management approaches.

Just energy business needed! How to achieve a just energy transition by engaging energy companies in reaching climate neutrality: (re)conceptualising energy law for energy corporations

Public administration and energy regulators provide policy and economic support to achieve climate neutrality; however, the role of key stakeholders in energy transition, such as energy companies, is critical to a just energy transition. Corporate voluntary incentives to guide, support and pressure companies to disclose their climate-related risks are becoming commonplace internationally. Yet, formal legal frameworks to engage energy companies in reaching net zero emissions have largely been confined to financial risk disclosure and voluntary regulation. In this context, the article offers a normative solution that enables the effective implementation of obligations imposed on energy companies related to the 2050 energy transformation, addressing the concept of ‘energy-just companies’. It also proposes the management of this process by illustrating a different, proactive approach to the role of effective obligations in the transformation process based on a novel understanding of energy law principles. These legal solutions consist of ‘corporate energy transformation plans’ based on energy justice applied by energy companies.

Regulatory Framework and Behavioural Issues in the Informal Khokhas’ Markets in Pakistan (Article)


 
 
 
 
 Khokha (Kiosk) is a major part of informal markets and is widely observed across the globe and in Pakistan. Khokhas are one of the major sources of market-based poverty alleviation and absorb a significant number of labour force. However, on average Khokhas in Pakistan are in shabby states, which arise a question about its regulatory framework. Whether any regulatory framework of Khokhas prevails in Pakistan and to what extent it facilitates or hinders entry. To find an answer to these questions, we collect data from secondary and primary sources and find that, there exists no legal framework to obtain a license for establishing Khokhas in Pakistan. People set up a Khokha with a constant fear of demolishment, fines, confiscation, and arrest. We also find that the harassment of current vendors from public authorities is a major behavioural barrier for prospective entrants. Based on the other countries’ best practices, we propose a detailed set of policies for creating a formal legal framework for khokhas across Pakistan.
 
 
 
 

Missed Constitutional Moments and Real Constitutional Conflicts in Hungary 1989 v. 2011

This paper, examining the Hungarian example argues that that the price is high if a constitutional moment to adopt a constitution based on wide societal compromise has been missed. The constitution-making process might then be completed either by activist courts or by activist political forces. Hungary experienced two major constitutional reforms, both missing a consensual constitutional momentum. The first transformation in 1989–90, which replaced the socialist authoritarian system by democracy, was brought about by political elites, lacking democratic legitimacy, keeping the formal legal framework of the socialist constitution. The second reform in 2011 brought a formally new constitution (Fundamental Law of Hungary), initiated and adopted solely by the governing party (FIDESZ) with a constitutional majority, without consensus. The Constitutional Court both times attempted to play an active, corrective role in the aftermath of the constitution-making.

MECHANISMS OF CITIZEN PARTICIPATION IN THE LOCAL GOVERNMENT: THE NORMATIVE FRAMEWORK OF THE REPUBLIC OF SERBIA

A prerequisite for the development of the local community are different forms of citizen participation in achieving goals of interest to the local community and meeting their personal needs at the local level. Citizens can participate in the local community activities directly or indirectly. The direct participation in local life is exercised on the basis of strictly formal legal framework, including civic initiative, referendum, and citizens' assembly. The quality of the relationship between the local community and the citizens largely determines the degree of citizens’ indirect participation in political life. This paper will address the mechanisms of citizen participation at the local level, with specific reference to public debate and public hearings as mechanisms enabling citizens to participate in local decision-making processes, draw attention to problems and difficulties, and insist on the obligation of local self-government bodies to transparently implement some procedures envisaged in the 2018 amendments to the Local Self-Government Act. The paper also elaborates on other forms of citizen participation, such as consultations, information requests, petitions, surveys, and other available forms of citizen participation in public life.

Comparative Study Of Alternative Settlements In Indonesia And Timor Leste

Alternative Dispute Resolution (ADR) is a procedure in community practice which then gets recognition in the eyes of the law to settle a case between two or more parties by way out of court in a formal manner (litigation). ADR is considered to have more advantages, including easy, cheap, and fast, so it is more efficient and effective than solving cases in court. This paper aims to examine the existence of ADR in legal practice in Indonesia with a comparative review of the state of Timor Leste. The results of this paper reveal that compared to Timor Leste which is still new, Indonesia has first implemented ADR practices within a formal legal framework. Timor Leste actually also uses the ADR scheme in its daily community practice, but its implementation takes into account the elements of custom and society rather than the legal norms.

Developments and Challenges of Fashion Law in China

Over the last three decades, China’s legal framework and political attitude regarding fashion have faced several changes. Initially, the country lagged behind the international standard, but over time China has made a significant effort to improve the legal environment where the fashion industry operates. If China is now a top player in the global fashion market, it is due also to its commitment to building on a solid formal legal framework. While this consolidation is occurring, further transformations that will affect the fashion business are underway in China: in particular, one concerning the advent of digitalization, which is crucial in determining the future development of the industry and increasingly relevant due to the spread of COVID-19, and another concerning the undergoing social, political, and cultural changes being strongly pushed forward by President Xi’s leadership. This paper aims to identify some features of the evolution of legal regulations relating to the fashion industry in China and to analyze its current trends and possible future developments.

Religious diversity, legislation, and Christian privilege

This article examines the role of legal frameworks and everyday interaction in the negotiation of religious diversity in Victoria, Australia. We argue that both formal legal frameworks and everyday interactions are significant in encouraging the respectful negotiation of religious difference. Experiences of historical privilege and visibility impact how religious people and groups experience and understand these processes. Or, put another way, the social position of various faith groups in Australian society shapes how people engage with both legal frameworks such as anti-discrimination legislation, and with other people in everyday interaction. Further, people’s everyday interactions shape their responses towards legal frameworks. Anti-discrimination and anti-vilification laws also shape everyday interactions through an effect that can be described as the ‘shadow of the law’, in which legal decisions communicate information about normative expectations that particular forms of behaviour are acceptable or unacceptable.

Bullying and countering it in the educational space. Sociological analysis

The article is devoted to the sociological analysis of the situation with bullying (prevalence, dynamics, connection with socio-demographic indicators) and counteraction to it (formal legal framework and real practices) in the modern educational space of Ukraine. According to 2018, the number of systematic bullers is 12.2%, the number of systematic victims — 15.7%. Thus, in reality, it is not about 67% (two thirds) of children and adolescents, as noted in the justification of many anti-bullying initiatives, but about a much smaller number of people who, however, are systematically bully or bullied by others. The connection between bullying and gender, financial status, health status, emotional state, and the presence of violence from adult family members was analyzed. The legal framework for combating bullying is considered. It is shown that significant obstacles to the implementation of anti-bullying laws are formalism, lack of qualified psychological staff and the practice of concealing the facts of bullying by the management of educational institutions. The article provides a list of real steps to combat bullying, which should lead to positive changes (online training, information campaigns, hotlines, etc.). International data on the evaluation of prevention programs are given. To be more effective, these programs must combine systematic monitoring and targeting of children and adolescents at high risk. Anti-bullying programs should not so much completely eliminate the phenomenon of bullying as bring it out of the norm, which is important on the way to the humanization of education. The necessity of further sociological researches in the field of cyberbullying is substantiated, as well as the necessity of assessing the real position of teachers.

The International Regulation and Governance of Time

The paper examines the system for the regulation and governance of time, both with respect to the time of day (i.e., clock readings), and calendar dates. Sub-topics of the two areas include the definition of Universal Time Coordinated (UTC), time zones, daylight saving time, and the International Date Line (IDL). The analysis begins, for both areas, by briefly sketching out the scientific background—without which the subsequent legal and institutional discussion would not be meaningful—and the historical development. It then goes on to describe the present-day mechanism for the regulation of both areas. This examination will reveal noteworthy differences: whereas the regulation of clock readings is based on a complex interplay between national statutes and government laboratories, international organizations, and non-governmental organizations, hardly any formal legal or institutional framework is in place for the regulation of calendars. An explanation for this discrepancy is suggested. The paper then proceeds to address questions of interpretation where international legal instruments make reference to time without specifying the relevant time reckoning system; a solution is proposed which builds on 19th-century domestic litigation, adapted to the context of public international law. A final paragraph draws more general conclusions and undertakes a brief outlook into the future.

REFORMASI BIROKRASI DALAM TRANSISI

This book is discusses the sustainability of bureaucracy reform through sustaining publicsector innovation. This issue appears since the turn of leadership from Mr. Susilo BambangYudoyono to Mr. Joko Widodo. The authors explain scrutiny analysis on the relationshipbetween bureaucracy reforms public sector innovation by concept, practical applicationby analyzing historical period of transition span of pilot practices experiences in centralgovernment or local authority so far.An attempt to learn from the experience of its own repertoire, although the government hasissued guidelines for keeping legal protection and innovation can be applied in the respectivegovernment agencies. Innovation is something that is important but maintaining thecontinuity of the practice of innovation is not an easy thing, especially when undertaken for adecade and a half since the 1998 reform movement in the middle of political transformation,stabilization of economic growth and the limitations of formal legal framework for theadministration in regulating the action of the apparatus until today.

Transnational environmental regulation and the normativisation of global environmental governance standards

PurposeThis paper aims to propose a legal characterisation of the recent proliferation, across the broad range of global environmental good governance initiatives and practices, of a diverse mix of regulatory environmental standards, many of which are informal in origin insofar as they are neither State-driven nor State-centred. It examines the novel conception of legal order posited by Twinning and Walker, to determine whether it encompasses the myriad rules and standards emerging in the field of environmental governance.Design/methodology/approachSurveying the rapidly developing montage of formal and informal rules and standards associated with global environmental governance, this paper uses the analytical framework provided by scholars of “global administrative law” to reconcile the complementary roles of formal and informal sources of legal rules, and to explain their increasing convergence around a set of good governance principles and standards commonly used in national administrative law systems.FindingsThe paper concludes that the emerging regulatory framework for global environmental governance comprises an almost endless variety of forms of novel transnational regulatory activity, many succeeding in having a profound impact on environmental outcomes. Yet all appear to be founded upon and guided by a discrete set of good governance standards and principles of an administrative law character – including transparency, participation, legality, rationality, proportionality, reviewability and accountability – which serve to enhance the credibility and legitimacy of each regulatory mechanism.Research limitations/implicationsIt appears that new and informal forms of environmental regulatory activity enjoy a complex symbiotic relationship with formal systems of environmental law. In addition to filling lacunae and addressing deficiencies in such systems, owing, for example, to the transnational character of much of today’s trade, informal regulatory systems are increasingly influencing the evolution of formal legal frameworks and, in so doing, are improving the responsiveness, flexibility and accessibility of this new environmental “legal order”.Practical implicationsAt a practical level, viewing the wide range of new forms of environmental regulatory activity through the prism of global administrative law (or global environmental law) brings unity to this diverse field and, in so doing, makes available to all the actors involved in this “community of practice” a wealth of established practice and principle which can help to inform the elaboration and interpretation of rules and standards of environmental governance through a process of cross fertilisation of ideas and approaches.Social implicationsRecognition of the legal character and significant role of the wide range of novel forms of environmental regulatory activity lends further credibility and legitimacy to such mechanisms, which often comprise the only truly relevant and applicable environmental controls or truly accessible mode of redress and accountability. The challenges of realising sustainability are immense and, as one leading commentator has noted, “all normative means are useful to this end”.Originality/valueThis paper attempts to characterise the legal nature of the range of novel forms of environmental regulation which (can) play such an important role in modifying the behaviour of many of the key environmental actors globally – actors who have largely been unaffected by more formal legal frameworks. For this reason, it seeks to encourage a fundamental shift in the way we think about environmental law and legal authority.

Reflections on Consumer Law and Policy in Seychelles

Consumerism only reached Seychelles after a wave of market-liberalization reforms adopted in 2008 as a response to a dire economic crisis. Consumer law is therefore only a recent phenomenon in the country. The main sources of inspiration for Seychelles legislation are the UN Guidelines on Consumer Protection, the EU Directive on unfair contract terms, and the South African Consumer Protection Act. Policy initiatives tend to be modelled either on other small island countries or on Commonwealth countries. The formal legal framework is overall modern and in line with international guidelines. However, the article identifies two sets of challenges encountered in practice. First, local standardization efforts fail to address the matter of poor-quality products entering the market, and this lack of local capacity is insufficiently complemented by reliance on international standards. Secondly, consumers seldom rely on the adjudicatory mechanism provided by consumer laws and informal settlement mechanisms are preferred, which comes at the cost of depriving consumer law operatives of precious interpretative materials, leaving areas of legal uncertainty. While policy guidance from the political sphere would be needed, it is unclear how much attention consumer matters will receive in the medium term.

#MeToo? Legal Discourse and Everyday Responses to Sexual Violence

Legal consciousness scholars identify the ways in which law is referenced to authorize, define and evaluate behaviors and choices that occur far outside any formal legal framework. They define legality as the “meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends.” We use the idea of legality to argue that, in matters of sexual assault and rape, the limits of the law extend beyond the courtroom. Rather than simply influencing or guiding only those who are willing to consult the law in their efforts to seek justice, laws and legal discourse have the potential to frame and constrain any attempt to discuss experiences of sexual violence. #MeToo and other forms of “consciousness-raising” for sexual violence highlight the limiting effects of law and legal discourse on public discussion of sexual violence. We find that, paradoxically, in the case of sexual violence law has the capacity to undermine the goals and benefits of consciousness-raising approaches, privatizing the experience of sexual assault and silencing its victims.