Legal Breakthrough Research Articles

Access to Agrarian Right Justice: The Study of Indonesian Women Struggle in Transnationality Marriage

The paper brings about the personal experience of Indonesian women citizen (WNI) who marry to foreigners (WNA) in obtaining access to their right in land ownership and in struggling to challenge the constrains and strategies in order to have their rights rehabilitated by the state who has been treating the citizen unfairly. The marriage status has caused women to be discriminated if they don’t have a prenuptial agreement. The research uses feminist-perspective qualitative methodology, reinforced by three theories, namely multicultural feminism, feminist legal theory, and access to justice theory. There are three findings of the research. First, the prenuptial agreement places woman WNI in a dilemmatic position to choose between access to land ownership rights or joint marital property. Second, some see this and name it as legal smuggling or some dub it legal breakthrough. Third, it is necessary to build solidarity to unite in struggling for change against discriminative policy, by involving and being involved in voicing woman experience to rehabilitate equality of rights before the law.

Building Flats Through Waqf Land: Legal Breakthrough And Obstacles

Legal Breakthrough and Obstacles. The ratification of Law No.20/2011 regarding flats has led us to a legal breakthrough particularly on the merger opportunity between waqf and flats. Such opportunity offers legal distinctive solution such as owning the flats based on the Right to Ownership of Buildings Title (Sertifikat Kepemilikan Bangunan Gedung/SKBG) and the imposition of collateral in fiduciary. On the other hand, this law also brings out legal issues related to the rights and responsibilities of the parties in the lease contract or the cooperation between the waqf supervisor and the manager of the buildings and the tug-of-war concerning the dispute settlement authority between general and syariah courts. DOI: 10.15408/ajis.v17i1.6229

THE PROGRESIVE RECHTSVINDING IN CRIMINAL JUSTICE PROCESS

The positive law still dominates in Indonesian’s law. Currently the legal institutions must do a new beginning. Legal proceedings not often able to resolve the law issue clearly, even provide the substantive justice for both of the perpetrators and the victims. The discovery of progressive law in the criminal justice process is indispensable today. For example is to implement the progressive judge’s decision that’s mean it is not just legalistic as a depictions of the constitution, judge’s decision not only to maintain order but to deliver improvements in public and to build the social harmonitations. For the last, judge’s decision must be visionary that reborned the courage morality and legal breakthrough for the better nation.

Problematika Penyelesaian Sengketa Hasil Pemilukada oleh Mahkamah Konstitusi

When local election is stated as a part of the regime of general election law based on Article 236C of Law No. 12 Year 2008 on Local Government, the authority to settle the dispute on it was transferred from the Supreme Court to Constitutional Court. In the course of its development, the authority of the Court to decide local election dispute does not lie on textual interpretation only which merely rules on the dispute concerning the result of the election but also on the violations which happened during the election process. It is the constitutional obligation of the Court which basically has the purpose to ensure that fair and just election can be held. In practice, lots of problems arose in the organization of the election either concerning regulation, organization or law enforcement. From the Court side, lots of challenges and obstacles are also faced in settling election dispute. However, that situation does not deter the Court from making legal breakthrough to mend and improve local election system. The steps taken by the Constitutional Court precisely become inevitable and show to a greater extent its character as a court for constitutional matters with the authority to enforce law and justice as stipulated by the Constitution.

Tafsir Konstitusional Pelanggaran Pemilukada yang Bersifat Sistematis, Terstruktur dan Masif

The Constitutional Court has created a legal breakthrough in handling the local head election dispute, in order to uphold the democracy and break away from habitual practice of systematic, structured, and massive (STM) violations. The Court does not simply calculate the results of vote count but also have to seek the justice and prosecute results counting rate that were disputed. As the juridical normative research, the research uses a statutory, case, historical approach and the sociology of law. The research shows that throughout 2008-2011 Court has granted the dispute for as many as thirty-two cases. Of that amount of cases, those with the STM violations are as many as 21 (twenty one) cases. Whereas the nature of TSM were divided into two kinds namely cumulative and alternative which both may cancel local head election results. There are three types of local head election violations, first, violation in the process that does not affect the results of the election. Second, the breach in the process that affect the election results, thirdly, violation of the terms of conditions to be a candidate which are principal in nature and can be measured. The systematic, structured and massive violation of the local head general election is violations committed by the structural apparatus, both government officials and election organizers, collectively; not an individual action, well-planned (by design) and the impact of such offencesis extensive rather than sporadic.

Konsep Hukum Administrasi Lingkungan Dalam Mewujudkan Pembangunan Berkelanjutan

Nowadays, Enviromental issue is not belong to Individual or bilateral issue merely, it has becornara collective responsibility of all people in the world. We can say that any pollution and environmental damage almost reach out the highest culmination. A conjungture enviromental disaster almost occurred in all over epicentrum of the world, including Indonesia. It will be an undebatable proof that between human and nature in the context of enviromental management is getting to be unfriendly. Thus, prevailing every existing issue, needs a progressive and integrative legal breakthrough, which is become one of elegant solution for sake of suistainable development purposes. Therefore, hopefully, the estuary of this writing is attempt to give alternative idea to development of the concept of legal administrative oversight, which will be a reference for development of administrative law and currently as a correction of the oversight of enviromental administration all at once.

The First Preliminary Reference of the French Constitutional Court to the CJEU:Révolution de Palaisor Revolution in French Constitutional Law?

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.

ASPEK HUKUM CLASS ACTION DAN CITIZEN LAW SUIT SERTA PERKEMBANGANNYA DI INDONESIA

The assertion aspects and Citizen Law Class Action Law Suit in fact has been recognized and accepted by the Judge and Judicial us, this condition affirmed the issuance of the Supreme Court of Indonesia Regulation Number I of 2002. Legal Breakthrough Central Jakarta District Court that receive and examine claims has increased the belief of justice seekers denganadanya decisions on a lawsuit aqua. However, it must be recognized that in the particular jurisdiction in Indonesia, based on research results Research Center of Law and Justice of the Supreme Court still found many judges who do not understand the legal aspects of handling and class action law suit and the citizen. Characteristics of the class action lawsuits and citizen law suit is necessary shared understanding of both the Judge and the community as a plaintiff; To understand the uniqueness of this lawsuit we all need to do a comparison on other countries that have implemented first lawsuit is like America, Canada etc. Keywords: Aspects of Law, Class Action, Citzen Law Suit