Indonesian Legislation Research Articles

Legality of Khulu' Lawsuit for Wives in the Provisions of Legislation in Indonesia

The solution household crisis provided by the wife and accepted by the husband is known as a khulu' in Islamic law. This study examines the legal protection for a wife if the surrender of khulu' is determined and investigated. As well as the relationship between the provisions and the concept of khulu' with the position of women in marriage law which is sourced from the Compilation of Islamic Law related to Marriage Law.. It was decided to apply the research method of normative juridical research in conjunction with a statutory approach. The findings of this study indicate surrender of khulu' to the husband to divorce himself from the marriage bond is accompanied by the payment of 'iwadh', namely the payment of money or goods to the husband from the wife's side as a reward, divorce as a form of legal protection for the wife. The text states that 'iwadh is a system of legal protection given by the state to the wife who proposes khulu'.Â

Controversy of Presidential Decrees in a State of Emergency in Indonesia: Case Study of The Decrees of President Soekarno And President Abdurrahman Wahid

The debate of the decrees of President Soekarno and President Abdurrahman Wahid regarding the constitutional and unconstitutional presidential decree in emergency constitutional law continues to be a controversy that does not end until now because it is still being discussed related to the situation. This paper discusses 2 (two) phenomenal decrees related to constitutional or unconstitutional in terms of emergency constitutional law. By using normative juridical research methods. The approaches used are the statutory approach, the conceptual approach, and the historical approach. This paper discusses 3 (three) main findings, among others: First, the Presidential Decree is de facto and de jure motivated by no recognition of political action or legal action; Second, the decree is formally regulated in Article 12 and Article 22 of the Constitution of the Republic of Indonesia because in the 1945 Constitution it is regulated that if the country is in a state of danger, the president can make decisions in accordance with the authority regulated by laws and regulations; and Third, The decree can be said to be unconstitutional because it is not in accordance with the Indonesian constitution. The decree is not regulated by Indonesian legislation so that formation is considered unconstitutional because it cannot be based on law. However, in the emergency constitutional law, this situation becomes normal because the emergency constitutional law does not use legislation as usual when the country is in normal condition.

POSITION OF CHILDREN OUT OF MARRIAGE IN PERSPECTIVE OF PROGRESSIVE ISLAMIC LAW

Children born out of marriage are children born from marriages carried out according to their respective religions and beliefs. This understanding shows the existence of marriage, and if it is carried out according to the Islamic religion, then such a marriage is valid in the perspective of Islamic fiqh as long as it meets the requirements and pillars. Regarding to the position of children out of marriage, in 2012, the Constitutional Court issued a decision related to this matter which then raised pros and cons from various parties, both from legal practitioners, academics, the Indonesian Ulema Council, and even the community. Based on it, this research would like to examine more deeply related to the legal position of children out of wedlock in Indonesian legislation in the perspective of Progressive Islamic law. The type of research used is normative-empirical legal research using primary and secondary data, data analysis using qualitative descriptive and drawing conclusion using deductive thinking. The results showed that children out of marriage in the perspective of progressive Islamic law are children out of marriage have a kinship relationship with their father if born at least six months after marriage or within a grace period of four years after the marriage broke up provided it is evident that within four years their mother didn't excrete.

The Implementation of Omnibus Law in Indonesia Law Making Process on Philosophy Review

The omnibus law is a method of law-making in Indonesia that began to be applied when the creation of the Job Creation Act was established. The adaptation of this method is controversial because in addition to aiming to simplify Indonesian regulations, it also violates the provisions of the formation of laws regulated in the law. The implementation of this omnibus law is the focus of research studies that lead to discourses based on schools of legal philosophy, especially the Positivism and Legal Realism schools which lead to contradictory conclusions. In order to answer this question, a juridical literature research will be carried out based on an understanding of the various schools of law based on philosophy, using primary legal materials and secondary legal materials. The results of the study conclude that legal positivism requires omnibus law to be stipulated in law as a method of law formation before it is implemented, so that it can provide legitimacy to its position in Indonesian legislation. Meanwhile, legal realism views that the presence of omnibus law is the will of the community and must be responded to in a responsive manner to overcome the excess regulations that occur in Indonesia and tend to overlap.

The Construction of Religious Freedom in Indonesian Legislation: A Perspective of Maqāṣid Ḥifẓ Al-Dīn

The Indonesian state has legal provisions of religious freedom contained in the constitution and its derivatives legislation. This article aims to discuss religious freedom in Indonesian legislation from the perspective of maqāṣid hifẓ al-dīn. This study is the result of qualitative research using a content analysis approach. From the results of the discussion, it is known that the freedom of religion in Indonesian legislation includes freedoms to choose belief (Belief in One Supreme God), to worship, and to express religion. These provisions are in line with hurriyyah al-'i'tiqād Ibn 'Āsyūr and al-ḥurriyyah fī al-dīn al-Zuhailī regarding freedom of worship but are not in accordance with al-Zuhaili's opinion about freedom of belief, an area of personal choice when one may choose to be religious or not. The contradiction occurs because all Indonesian citizens must believe in One and Only God as the first precept of Pancasila and make six religions as religions recognized by the State as contained in Presidential Decree No. 1/1965 (PNPS Act). Therefore, it is necessary to reconstruct the law and values of religious freedom contained in the PNPS Act, especially in its implementation.

Validity of Electronic Documents as a Tool of Evidence in Divorce Decisions at East Jakarta Religious Court


 
 
 The rapid development and advancement of information technology has led to changes in human life which directly affect the birth of new forms of legal action. Activities through the media of electronic systems, also known as cyberspace. This study aims to determine the validity of divorce through social media (electronic) in divorce cases in the Religious Courts, to analyze the judge's legal considerations on social media evidence in divorce cases in Decision Number 1528/Pdt.G/2017/PAJT and to determine the validity of the divorce. through social media (electronic) in the perspective of Islamic law and legislation in Indonesia. This study uses normative legal research, namely by studying the literature, laws and regulations, and writings that are closely related to the problem under study. This research uses the Information Search Literature Study and the data needed in several sources. Preparation using literature study is done by reading, studying and analyzing literature or books and other sources related to the research theme. Deductive data analysis is a procedure that begins with a general event, the truth of which is known or believed, and ends at a conclusion. According to Islamic law, divorce is through online media such as telephone, Facebook, Youtube, SMS, Whatsapp, or Instagram, whether it is only in the form of sound or accompanied by the form of the party communicating in the form of an image (video call). Then according to the Shari'a, the divorce is declared as a valid divorce, even though there is no guardian and it is not delivered directly in front of the wife. According to positive law, it is in line with the provisions in Islamic law which regulates divorce, namely the arrangement in KHI comes from Islamic law. However, the absence of legality in the form of proof of divorce (with no divorce being handed down in court), namely through online media will indeed have an impact on marital status problems and other legal problems that may arise so that Muslims also need to comply with state law.
 
 

Comparative Study of the Process of Islamic Law Legislation in Indonesia with Malaysia and Its Implementation into Legislation Regulations

Islamic law in Indonesia and Malaysia in terms of rules and regulations, to explain the position of customary law, and Islamic law in the statutory system in Indonesia and Malaysia, and to find out how the implementation of Islamic law in Indonesia and Malaysia which is a product of legislation. The results showed that the legislative process of Islamic law in Indonesia and Malaysia is colored by various methods so that it is formed into statutory provisions; Islamic legal legislation in Indonesia is the basis for the formation of laws is a reflection of regulations that become the ideology of the state philosophy not only of Islam but also for adherents of other religions. The Islamic law legislation in Malaysia begins with issues requiring legal certainty to ensure that Muslims can overcome the mistakes and problems faced. There are times when fatwas are merely fatwas and not one law. When the fatwa becomes law, if it is approved by the Sultan and agreed upon by the Majlis Mesyuarat of their respective Kingdoms if the regulation is in line with the basis of the determination, then the law can be applied; on the contrary, the established law is not in line with the vision and mission of the nation, then the product of the legislation will disappear control.

The International Context of Indonesia's Omnibus Law: A bibliometric review

This research examines the perspectives of legal professionals on omnibus legislation in Indonesia, a legal and human rights issue. We have done data searches on hundreds of legal papers that address concerns relating to the law of copyright on the job. Using the keyword system on Google Search, several domestic and international legal periodicals are combed for data. He maintained his efforts to engage the coding system thoroughly with an in-depth examination and a high level of interpretation in order to understand how it may solve issues by emphasizing the quality and integrity of the data. On the basis of the research data and debate, the vast majority of legal professionals believe it to be a fantastic legal change. Nonetheless, the majority of them continue to dispute its efficacy and execution in light of the court's recent ruling that the Creative Economy and Work Law is unconstitutional with conditional enforcement. This conclusion will hopefully influence the legal review section in Indonesia

Telemedicine in Indonesia During the Covid-19 Pandemic: Patients Privacy Rights Protection Overview

During the Covid-19 pandemic, online health services through applications or telemedicine have increased yearly. Many parties are involved in telemedicine to spread the confidentiality of information and patient privacy to various parties. Even though regulations and guidelines regarding telemedicine's implementation during the Covid-19 pandemic are established, personal data leakage still occurs. The problem discussed in this research is: How was telemedicine implemented in Indonesia during the Covid-19 pandemic? And how is the regulation of privacy rights protection for patients who use telemedicine in Indonesia? This research uses a descriptive normative research method with a qualitative approach. The research results show various problems in Indonesia's telemedicine implementation during the Covid-19 pandemic, especially problems related to data protection regulation for telemedicine patients. Based on the author's analysis, no regulations regulate strict sanctions when the patient's data or medical records are not kept confidential. There is no explicit provision that threatens anyone who misuses the patient's data. Thus, it is necessary to have special regulations governing the protection of patients' privacy rights in the use of telemedicine in Indonesia, and Indonesian legislators need to continue the legislative process of the Personal Data Protection Bill.

KRITERIA PERJANJIAN INTERNASIONAL YANG HARUS MENDAPATKAN PERSETUJUAN DEWAN PERWAKILAN RAKYAT

This article discusses the criteria for international agreements that must get approval from Indonesian Legislative Assembly with focus on two problem what is the legal implications of Constitutional Court decision number 33/PUU-XVI/2018 for the criteria of international agreements that must be approved by Indonesian Legislative Assembly and how to determine the criteria of the international treaties that have broad and fundamental effects on people's lives which is related to the country’s financial burden. This is a normative legal research. The results of this study is that the legal implications of the Constitutional Court's decision for the criteria of international agreements which must have approval of Indonesian Legislative Assembly should be positive. Asides from not giving any limit of the criteria, it can also be used as a control for the government carelessness in ratifying international agreements in trading which is almost always using Presidential Regulation instrument. To determine the criteria that an international agreement has broad consequences and fundamentals related to the country’s financial burden or require establishment of regulation, is carried out through a consultation mechanism, and the results of this consultation are recommendations and respected.

Putusan Open Legal Policy Ketentuan Tindak Pidana Zina Perspektif Maqashid Syariah

Constitutional Court Decision No. 46/PUU-XIV/2016 which rejects the expansion of the meaning of adultery in the Criminal Code has become a hotly debated topic. Some people think that the Constitutional Court should have the courage to make legal breakthroughs on this very important issue. However, the Constitutional Court Justices are of the opinion that the expansion of the meaning of adultery is not within their jurisdiction.
 This type of research is a normative juridical research, with a statute approach. The nature of the research is descriptive analytical, using a knife of maqa>s{id sharī'ah concept analysis.
 From the results of the research, it was concluded that first, the contextualization of Jaseer Auda's maqa>s{id sharī'ah concept against the arguments of the Constitutional Court judges in family resilience was actually quite well represented. However, the judges tended to choose the cause of the damage to be more due to the existence of a void in the law, in which the authority to fill in the law could only be exercised by the Indonesian Legislation Body, namely the Indonesian House of Representatives. Second, LGBT are the most massive and dangerous implications indirectly in the decision of the open legal policy. In addition to the harm in the form of diseases caused by these actions, the threat of nasab (hifdz al-nasab) which is guarded by Islam itself and the tarnishing of honor that is contrary to Islamic teachings in order to maintain the honor of oneself and others (hifdz al-'irdh). Third, Realistic efforts to prevent cohabitation and the potential for violence against women, namely through the contemporary maqa>s{id system approach, include the following, namely by limiting the facilities that are feared to cause convenience in cohabitation behavior.

Analisis Pengadaan Alutsista Sebagai Perkembangan Industri Pertahanan Di Indonesia

Strategy in Building the Independence of the Indonesian Defense Industry Based on Law Number 16 of 2012 concerning the Defense Industry includes the establishment and strengthening of the KKIP (Defense Industry Policy Committee), the Defense Industry Policy Committee which is abbreviated as KKIP was formed based on Article 18, which has the task of coordinating national policies in the planning, formulation, implementation, control, synchronization, and evaluation of the Defense Industry. The effectiveness of legislation in Indonesia in the procurement of defense equipment to support the Defense Industry is the achievement of the targets and objectives of the relevant regulations. In this case the indicators of success are contained in Article 3 of Law Number 16 of 2012 concerning the Defense Industry. First, the defense industry is effective, efficient, integrated and innovative, the government has integrated research and development institutions in Indonesia to create an effective and efficient defense industry, then has produced innovations in seven priority programs for the defense industry. However, in the supply of components and raw materials for the manufacture of defense equipment products, the defense industry still lacks because industries producing defense equipment products still import several components from abroad because Indonesia's supporting component industry has not been able to supply all the materials needed for defense equipment production

Market surveys in Mataram, Lombok, illustrate the expanse of legal and illegal Indonesian bird trade networks

Bird keeping is deeply rooted in Indonesian culture and markets selling large numbers of birds are found across the country. We examined bird markets in Mataram on the island of Lombok. Across five market visits, 10,326 birds of 108 species were observed, with 18 of these species being nationally protected and 10 having been assessed as globally threatened by the IUCN Red List of Threatened Species. Observed protected species, as well as non-protected species with no or exceeded harvest quotas accounted for a total of 8,586 (83.1%) illegally traded birds. In terms of trade volume, 83% (n=8,347) of the recorded Indonesian birds were native to Lombok, suggesting that many of the birds for sale were sourced locally. However, 63% (n=65) of the encountered Indonesian species were not native to Lombok, confirming previously described intra-national bird trade flows between the Indonesian islands. We found a strong positive relation between a species’ body size and its asking price. Current legislation in Indonesia is sufficient to eradicate the open trade in illegally sourced and/or protected species. Improved enforcement of these laws, in combination with strategic demand reduction efforts, is needed to curb illegal and unsustainable bird trade in the country.

A Juridical Analysis of the Caning Implementation in Aceh Prisons and its Relations to Islamic Laws

The Aceh government has implemented Islamic Sharia regulations by enacting Qanun Aceh Number 7 of 2013 concerning Jinayat Procedural Law, and Article 262 contains provisions regarding the implementation of flogging in public places. However, according to Article 30 Paragraph (3) of the Aceh Governor Regulation Number 5 of 2018 concerning the Implementation of Jinayah Procedural Law, the execution of flogging is restricted to prisons and detention centers. This study aims to outline the legal arguments for shifting the implementation of flogging in Aceh and the Islamic legal provisions related to carrying out flogging in public places. This research uses a normative legal method with a statute approach that refers to the concept of law as a rule and also uses Islamic legal doctrine, which is then analyzed qualitatively and described descriptively to find the alignment between the core issues and the normative provisions. The results of the research show that the main reason for issuing the Governor's Regulation regarding the implementation of flogging in prisons is to increase investment, as the implementation of flogging in Aceh has faced opposition from external parties. However, the issuance of the Governor's Regulation contradicts the system of forming legislation in Indonesia and legally lacks legal force. According to Islamic law provisions, the execution of flogging must be witnessed by a group of believers, as explained in the Quran, Surah An-Nur, verse 2. The implementation of flogging in prisons cannot be witnessed, whereas this is an integral part of the agreed implementation of flogging. There needs to be a specific and easily accessible location for the public as a place to carry out flogging penalties.

THE DEVELOPMENT OF LEGAL AND MORAL RELATION THOUGHTS AND ITS IMPLEMENTATION TO INDONESIAN LEGISLATION SYSTEM

This research discusses the development of legal and moral relation that is inseparable from two very influential thoughts (mahzab): natural law and legal positivism. The views of both thoughts are in contradiction with each other on legal and moral relations. Natural legal thought explains that law and moral are interrelated and even interdependent, while legal positivism thought views that law and moral are two different and non-interconnected things. The objective of research is to study the development of relation between law and moral in Indonesian legislation system. The research method used was juridical normative method using primary and secondary law material inventoried to get prescriptive legal analysis. The result of research shows that legal and moral relation in Indonesian legislation system, by seeing the relation at substance level indicating integrative relation and at structural level indicating independent relation. In the relation, it can be understood that legal and moral relation is interconnected on the one hand and not interconnected in its law enforcement aspect on the other hand. Thus, the recommendation in this research is that legal substance and legal structure elements should complement each other as an intact legal system, to actually give law certainty, justice, and benefit to the people.

Perlindungan hukum bagi konsumen marketplace terhadap pencantuman berat bersih dalam produk makanan kemasan

This study aims to determine the protection for consumers and the responsibilities of business actors in packaged food products in the marketplace according to Indonesian legislation. In its implementation, it uses normative juridical methods, analyzes descriptive data with a qualitative approach, and examines primary data and secondary data. Research shows that the protection regulations for marketplace consumers against the inclusion of net weight in packaged food products have been regulated in Indonesian legislation. Technological developments make the buying and selling process easier. Through the marketplace, a website or application is used as a place for buying and selling from several vendors. There are various packaged products traded, which is one of the provisions stating that packaged food products are eligible for distribution based on quality, health, content, and net weight. Various kinds of laws and regulations become references in regulating the distribution of packaged food in the marketplace. Consumer protection questions legal protection, so as a law that has rules regarding protection to consumers and the way business actors are responsible for defending their rights and carrying out their obligations. Article 22 of Law Number 2 of 1981 concerning Legal Metrology regulates the reasons for the inclusion of net weight that should be included in packaged food products. The inclusion of net weight is very necessary to be included in the actual packaging of food products.How to cite item: Merah, NAP Hutabarat, SMD (2022). Perlindungan hukum bagi konsumen marketplace terhadap pencantuman berat bersih dalam produk makanan kemasan. Jurnal Cakrawala Hukum, 13(1).doi:10.26905/idjch.v13i1.5333.

Debt Payment by Heir: A Study of Indonesian Legislation

The application of the Personality Principle in Article 1315 BW jo. 1240 BW in relation to Article 833 paragraph (1) BW was examined in this study, as well as whether these articles conflict with one another. Data were collected through interviews with key informants, and from legislation, journals, books and articles from websites. The study found that Article 833 paragraph (1) does not conflict with the Personality Principle because if the debtor dies, the heirs have no obligation to pay off the debtor’s debt, because an agreement only binds the parties who signed it, including the debt agreement. The bank would not declare the debt paid off until the insurance claim was settled.
 Keywords: debt payment, principle of personality, agreement

Health versus Economic Security: An Ambivalence of Anti-Tobacco Norm Internalisation in Indonesia

It is widely accepted that tobacco is a threat to public health security. Anti-tobacco norms are intensively campaigned by international agencies, such as World Health Organisation (WHO) and non-government organisations ( NGOs ). Indonesia has not signed and ratified the WHO Framework Convention on Tobacco Control ( FCTC ); however, Indonesian legislation obligates government agencies such as ministries, universities, and the local government to control tobacco use. Meanwhile, tobacco remains one of the central sources of income for Indonesia's state and local economies, a reality that is especially salient for tobacco farmers and labourers. This study aims to examine the extent to which Indonesia internalises the anti-tobacco norm. We focused our investigation on features including norm internalisation and human security, with specific attention to economic and health security. Our study revealed notable ambivalence in the internalisation of tobacco norms in Indonesia. This ambivalence reflects conflictual interests over economic and health security and ambiguity in policymaking concerning tobacco control. Using a qualitative approach, the authors of this study gathered primary data via in-depth interviews and FGD with knowledgeable stakeholders, such as government officials, NGO representatives, health agency workers, farmers, smokers, and academics, and integrated this data with support from the relevant literature. The findings of the present study enrich the existing discussion on norm internalisation, particularly as it relates to tobacco control and other controversial norms.

BATAS KEWAJIBAN ANAK BEKERJA DALAM KAJIAN HUKUM KELUARGA ISLAM

Children are the responsibility of parents, as long as they are not mature (adult) as their needs are the responsibility of parents, but when they grow up there are limits in both normative and positive laws that allow children to work, in reality many children are already working looking for income under the specified age. The problem is when can children work in both normative and positive law? This research is to be able to clearly describe a rule that applies, so that parents do not employ underage children. This research is a library research, namely a literature review of the views of the scholars and the laws and regulations in Indonesia with a philosophical-sociological approach. From a normative legal perspective, scholars agree that a child who has reached puberty can only carry out his religious obligations, including work, because he is considered an adult, while in Indonesian legislation, a child is said to be an adult when he is 21 years old, so that at that age, the child has an established mind, physically and psychologically.Keywords: Minimum Limits, Child, Family Law

Presentation of Social Actor on the Claim of 2019 Presidential Election Winner in Indonesia

In the 2019 Indonesian Legislative General Election and Presidential Election, two parties in competition, Joko Widodo-Ma’ruf Amin and Prabowo Subianto-Sandiaga Uno, have claimed their victory. The victory of Joko Widodo-Ma’ruf Amin was based on the results that had been issued by several independent polling agencies, while the victory of Prabowo SubiantoSandiaga Uno was claimed by the department of internal survey agency within their campaign team as the National Board of Victory (BPN, Badan Pemenangan Nasional). This situation caught the public attention quite massively at that time. One of the national newspapers, Kompas, even made a special report on the claim of victories between the two pairs of presidential and vice-presidential candidate. In relation to the statement, the study aims at analysing and describing the strategy of presenting the social actors through the process of exclusion and inclusion within the claims of victory. In conducting the study, the researchers rely on the use of constructivism paradigm with primary data sources in the form of five news items and secondary data sources in the form of books, online news items, and relevant journal articles and reports. In gathering these data, the researchers have implemented the documentation study and also the literature study. In the meantime, for analysing the data, the researchers have implemented the Leeuwen’s discourse analysis model that consists of exclusion and inclusion. Thus, the results of the study show that: 1) there are passivation, nominalization, and substitution of clauses within the news items; and (2) the inclusion process is carried out through the strategy of determination, abstraction, assimilation, association, and differentiation.