Mahkamah Agung Research Articles

Adjudicating Joint Property Dispute in Islamic Jurisprudence: Balancing The Best Interests of The Child With A Focus on Residency

Children hold a very important role in the development of a country. However, children are generally vulnerable; hence, protecting and ensuring children's rights must be a priority. One example of a condition where children’s rights are put at risk is when a child's residence becomes the object of a joint property lawsuit. In this case, the principle of the best interests of the child needs to be the main consideration in all matters of decision. This study aims to determine the characteristics of the best interests of the child principle in Islamic law and analyze the formulation of the judge's decision regarding the position of the child's residence, which is the object of a joint property lawsuit. This research is normative legal research, using primary and secondary legal materials. The result of this research shows that the principle of the best interests of the child initiated at the Convention on the Rights of the Child has become an important consideration in various laws and regulations in Indonesia, including the Compilation of Islamic Law to the Supreme Court Circular Letter (Surat Edaran Mahkamah Agung, SEMA). As an important principle to be applied in the joint property lawsuit, this study provides three views of the judge's decision formulation, namely: 1) The lawsuit is admissible as there is no explicit norm; 2) It is inadmissible as it is waiting for the child to enter adult age; and 3) It is admissible; however, the distribution is postponed till the child enters adult age. Through this study, the author agreed that the lawsuit is admissible by postponing the distribution until the child reaches adulthood. However, there needs to be some refinement regarding the position of SEMA and the clarity of adult age.

WHEN BUMN SUBSIDIARIES BECOMES THE "ALTER EGO" OF THE STATE: ANALYSIS OF THE SUPREME COURT CIRCULAR LETTER NUMBER 10 OF 2020 (SEMA 10/2020) REGARDING THE CORRELATION BETWEEN "BUMN SUBSIDIARIES LOSS” AND “STATE LOSS”

There is a clear distinction between the legal character of the State and that of the Company. While the state’s purpose is to serve the public, a company is ultimately formed for the purpose of gaining Profit. The theories of legal entities and Corporate Law argue that the formation of a legal entity, especially a Limited Liability Company (PT) is intended to separate assets and liabilities between a Legal Entity (Company) and its Shareholders. If the shareholders (State) do not intend to segregate both assets and liabilities, the state does not need to establish a Company from the beginning. Since the issuance of Law 17/2003 on State Finances, the legal extent pertaining to state assets has become increasingly blurred, because Law 17/2003 states that "State assets that have been segregated remain within the scope of state finances". This regulation complicates the legal status of BUMN[1] assets. Furthermore, the wealth status of BUMN Subsidiaries (AP BUMN)[2] experiences the same issue. Hence, one question arises: are Segregated Assets (Paid up Capital Injection by BUMN) still considered assets of the state or are they fully owned by the Company? The Supreme Court (Mahkamah Agung/MA), as of 18 December 2020, issued SEMA[3] 10/2020. Therein, point 4 of the Summary of the Criminal Chamber outlines that "Losses arising from BUMN/BUMD subsidiaries whose capital is not sourced from the APBN/APBD or through capital injection by the BUMN/BUMD and does not receive/utilize state facilities, will not constitute a part of the State’s financial loss”. This adds to the uncertainty because, from a legal perspective, the Shareholder of an AP BUMN is the BUMN itself (and not the State), thus creating a legal correlation that extends to considering AP BUMN Loss as State Loss, and creates a legal uncertainty. [1] BUMN (Badan Usaha Milik Negara) is State Owned Enterprises (SOE) [2] AP BUMN (Anak Perusahaan BUMN) is the SOE Subsidiary Company [3] SEMA (Surat Edaran Mahkamah Agung) is a Circular Letter (Administrative Policy) from Supreme Court to all courts in Indonesia.

Kewenangan Mahkamah Agung dalam Proses Penyelesaian Sengketa Perbuatan Melanggar Hukum pada Tingkat Kasasi

When there is a dispute regarding the authority to adjudicate between one court environment and another court environment, then in the end the Mahkamah Agung (MA) as the highest court will use its power to try and resolve the dispute at the Cassation level or at the Judicial Review (PK) level, with Thus, if disputes over the jurisdiction of adjudicators continue to be submitted to the Supreme Court of Justice by the litigants, then the accumulation of cases at the Mahkamah Agung (MA) as the court of final instance in relation to these disputes cannot be avoided. The research methodology at this writing is to use juridical research (legal research) is a form of scientific activity in the field of law which uses methods, systematics and a thinking that is specific to studying laws, using certain analysis. The purpose of this paper is: 1) to find out what are the main duties and functions of the Supreme Court. 2) to find out what judicial power is, 3) to know the authority of the Mahkamah Agung in the settlement of unlawful acts disputes at the cassation level.

Kewenangan Mahkamah Agung dalam Proses Penyelesaian Sengketa Perbuatan Melanggar Hukum pada Tingkat Kasasi

When there is a dispute regarding the authority to adjudicate between one court environment and another court environment, then in the end the Mahkamah Agung (MA) as the highest court will use its power to try and resolve the dispute at the Cassation level or at the Judicial Review (PK) level, with Thus, if disputes over the jurisdiction of adjudicators continue to be submitted to the Supreme Court of Justice by the litigants, then the accumulation of cases at the Mahkamah Agung (MA) as the court of final instance in relation to these disputes cannot be avoided. The research methodology at this writing is to use juridical research (legal research) is a form of scientific activity in the field of law which uses methods, systematics and a thinking that is specific to studying laws, using certain analysis. The purpose of this paper is: 1) to find out what are the main duties and functions of the Supreme Court. 2) to find out what judicial power is, 3) to know the authority of the Mahkamah Agung in the settlement of unlawful acts disputes at the cassation level.

Electronic Public Summon In Civil Procedure; In Effort To Quit The Colonial Heritage

The court summon is the first spearhead of the entire trial process, especially for the civil cases. Court summon has an essential role, even the summon process may decide the legitimation of a trial that conducted by the judge. The court summon is conducted in order to inform the parties when they should appear before the judge. It becomes important due to its impact to the parties’ life fate, either its right over goods or its legal status on a family. Therefore, the laws shall ensure that every person shall know whenever their rights being challenged before the court. In civil cases the court summon is regulated under Article 390 HIR (718 RBg), which is one of its kind is known as public summon. The legal basis to conduct the public summon in last 170 years has not been changed, only public summon in certain case that amended, such as in divorce case. Even then, the change does not really change the summoning process, the summoning still conducted by using a announcing paper that put in the government building and announcing through conventional media mass such as newspaper, radio or television. However nowadays, this kind of media has been left by the people, their popularity has been stolen by the internet like youtube, facebook, Instagram and etc. The Supreme Court (Mahkamah Agung, hereafter as “MA”) shall adapt to this era, MA shall re-innovate the way public summon conducted in last 170 years, by using the innovation of the 21th century which is the “internet”, by using the “Electronic Public Summon”

PENJATUHAN PUTUSAN PIDANA OLEH HAKIM TERHADAP PENYALAHGUNAAN NARKOTIKA BAGI DIRI SENDIRI

The purpose of this paper is to find out and explain about the judge’s considerations in giving penalties for Class I Narcotics Addicts, that is marijuana, which is stated in the Putusan Pengadilan No. 761/Pid/Sus/2021/PN Jmr. This paper refers to several approaches, such as case, statue, and conceptual approach, with normative research. The narcotics abuse case are resolved by providing guidance and care in the form of rehabilitation, not by imprisonment. However, in some cases, the are differences in resolving the case. The example of a narcotics abuse case that was resolved by imprisonment is the case by Mohammad Rifki Ananda, which is stated in the Putusan Pengadilan No. 761/Pid/Sus/2021/PN Jmr. The judge decide to resolved the case by imprisonment for 1 year, not by a medical or social rehabilitation. about Narcotics, in Pasal 54, states that medical and social rehabilitation are solutions that must be fulfilled by narcotics addicts and victims of narcotics abuse. Then, Undang-Undang No. 35 Tahun 2009 Pasal 103 also states that Majelis Hukum should order the defendant to take the rehabilitation as the settlement. The provision of rehabilitation for addicts and narcotics abuser is also strengthened by Surat Edaran Mahkamah Agung No. 04 Tahun 2010. Thus, it can be concluded that referring to Putusan Pengadilan No. 761/Pid/Sus/2021/PN Jmr, the judge did not give consideration and attention, and did not interpret all the Ayat in Pasal 127

Brand Dilution: An Analysis of The IKEA Versus IKEMA Dispute

This study is aimed to provide a different analysis related to dispute of trademark or brand of IKEA against Ikema. IKEA in the Judicial Review Verdict of Indonesia Supreme Court of (Peninjauan Kembali Mahkamah Agung), was asserted not having similarity with Ikema. On the other hand, the author views this case is potentially presumed as as a dilution case. Regarding this, the analysis employs theory that proposed by Shuy (2002) to uncover the identical similarity between the two trademarks. Graphemic and Phonetic analysis are used to establish the feature similarity, for analysis of public perception upon the both trademarks, psycholinguistic has been practiced. The result is the both trademarks are similar in terms of dilution. Keywords: dispute, dilution, linguistic analysis

Racism Toward Chinese Ethnic Group in Indonesian Social Media: Hate Speeches Analysis from Forensic Linguistic Perspective

Anti-Chinese sentiments are still deeply ingrained in the Indonesian public discourse. The issue of their identity and position triggers to many discriminatory actions toward them. The purpose of this study is to analyze hate speech against Chinese ethnic group expressed in Indonesian social media which has officially evaluated as a legal offense by the authorities. The theories of speech acts from Austin (1962) and Searle (1969) for a forensic linguistic study are employed to examine the hate speech as utterances and evaluate them in the context of Indonesian legal regulations. The data were obtained from Direktori Putusan Mahkamah Agung from 2019 - 2021. The results of the analysis reveal that hate speech portrays hurtful feelings and harmful attitudes. It is reflected by malice (expressive speech act), insult, or accuse (assertive speech act), persuasions so that others commit crimes (directive speech act), and crime plans in the future (commissive speech act). Then, there are ten forms of pejorative labels for the Chinese ethnic group. Race-based hate speeches expressed in the online media are prohibited according to Article 28 paragraph (2) of The ITE Law Article Number 19 of 2016. They are prejudiced action, violate human rights and cannot be considered as freedom of opinion and democracy because of their dangerous perlocutionary effects. The effects can provoke discriminatory action and even crime. Keywords: anti-Chinese, chinese ethnic group forensic linguistics, hate speech, racism.

Socialization of e-court implementation based on the jurisdiction in the Karawang district court

According to Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2019 concerning Administration of Cases and Hearings in Electronic Courts, is the answer to how to conduct the efficiency of the trial by using e-court applications, but the justice seeker community has not effectively done it because of the lack of information and ability to use the e-court application, it is necessary to socialize the application of e-court so that the principle in civil trials which is simple, fast and light costs can be applied properly, furthermore pandemic covid-19 conditions can prevent transmission if the trial is minimized face-to-face by using an e-court application. The method used was to create a banner explaining the flow steps of using an e-court application, then to create infographics and video graphics flow of the use of an e-court application so that the justice seeker community can better understand it, and finally to hold a national webinar to make the scope of e-court application socialization widely known throughout Indonesia. With this devotional activity, partners or Karawang District Court is very helped, because the District Court has to socialize this e-court application so that with this devotional activity the district court becomes helped, the justice seeker community becomes easier in understanding the use of e-court applications, and it is expected that in the future it will be more effective, by still paying attention to the rules of civil procedure law in running the trial online.

Linguistics Forensic of Hate Speech in Ahmad Dhani Social Media

The purpose of this research was to observe hate speech in Ahmad Dhani Social Media and identify the type of hate speech such as race and religion. This research used lexical semantic (verbal communication includes sounds, words, language, speech) in visual media. The method used in this study was qualitatitive research by describing the data. The collecting data was found from social media and Putusan Mahkamah Agung Republik Indonesia. The result of this research found that there was verbal communication which written in Ahmad Dhani Social Media and race and religion was type of hate speech which written in Ahmad Dhani social media. The conclusion of this research was found that there was hate speech in Ahmad Dhani social media.

Electronic Trial in Criminal Cases During The Covid-19 Pandemic (Study At The Purwokerto District Court)

AbstractThe Covid-19 pandemic outbreak in 2020 also affected the implementation of the trial in Indonesia. As an effort to prevent the spread of Covid-19, the trial was conducted electronically, without presenting the litigants. This needs to be done to ensure health, safety, and guarantee legal certainty for justice seekers. This study uses a normative juridical research method. The normative juridical research method is carried out through a literature study that examines secondary data in the form of laws and regulations, court decisions, agreements, contracts, or other legal documents, as well as research results, study results, and other references. The results of this study are gems, electronic hearings in criminal cases during the Covid-19 pandemic at the Purwokerto District Court continue to be carried out by taking into account the standard protocols for preventing and handling Covid-19. Second, there are several obstacles faced by the electronic trial in criminal cases during the Covid-19 pandemic at the Purwokerto District Court. The implementation of electronic hearings in criminal cases during the Covid-19 pandemic is the right solution, innovation, and breakthrough in efforts to prevent the transmission of Covid-19 as regulated in Supreme Court Regulation (Peraturan Mahkamah Agung, PERMA) Number 4 of 2020 concerning Administration and Trial of Criminal Cases in Electronic Court.Keywords: Electronic Court, Covid-19 Pandemic, Legal Certainty

WHEN CHILDREN’S RIGHTS ARE AT STAKE, SHALL COURT REMAIN SILENT? ANALYSIS ON THE IMPLEMENTATION OF PASSIVITY OF JUDGE PRINCIPLE IN CHILD MARRIAGE DISPENSATION IN INDONESIA

This article explores the existence of asas hakim pasif (passivity of judge principle) in cases involving children in civil cases in Indonesia. As one of the basic principles in civil procedure, judges must be bound by the scope of the case and evidence brought by parties. The principle is not absolute, however, showing that under the Law on Judicial Power; judges are obliged to uphold justice by exploring law and social values more than often. A study case in marriage dispensation shows that judges are facing pluralism orders. Therefore, judges’ value and understanding of children’s rights is a determinant factor. Recently, the Law on Marriage Number 1 of 1974 was amended along with the enactment of Supreme Court Regulation Number 5 of 2019 on Guidance of Marriage Dispensation Examination, which provides better protection for children from child marriage, both in substantive and procedural rights. This article then recommends judges to be more active in deciding on child marriage by upholding the spirit of child protection and encourages the Supreme Court (Mahkamah Agung) to increase its activities to mainstreaming child protection issues.

MANAGEMENT OF CASE'S ARCHIVES IN THE COURT FOR ACCESS TO PUBLIC INFORMATION AT THE ADMINISTRATIVE COURT OF MAKASSAR

Since the birth of the reform era in Indonesia the administration of government refers to the principles of Good Governance and General Principles of Good Governance. In order to accommodate the realization of good governance, a Law on Public Information Disclosure was established which mandates that every Public Agency must develop a system of information and documentation to manage Public Information properly and efficiently so that it can be easily accessed. No exception with the Mahkamah Agung which is committed to providing the best service to the public by realizing openness of information in the Court. Administrative Court of Makassar as a judicial body is also inseparable from the obligation to realize information disclosure in the Court. The purpose of this paper is to find out the implementation of the information disclosure service regarding archives at the Administrative Court of Makassar. Data collection is done through field observations and interviews with several related parties.

THE BASIS OF JUDGES ‘CONSIDERATIONS ON DECISIONS OF DIFFERENT RELIGIOUS HERITAGE IN ISLAMIC LAW PERSPECTIVE

Giving inheritance to heirs of different religions is considered a violation of Islamic law, because it is considered not to maintain Islam. property owned by Muslims should be used as a way to worship, not given to non-Muslims. In the settlement of the case of the Pengadilan Tinggi Agama Palembang, decision Number 05/Pdt.G/2015/PTA.Plg, referring to the Yurisprudensi Mahkamah Agung Number: 51K / AG / 1999, which basically states that heirs who are not Muslim can still get assets from the heir Those who are Muslims based on the "WasiatWajibah" which share the same as the part of the daughter of some heirs, so that non-Muslim children are entitled to a share of the inheritance of a Muslim heir as recipients of the obligatory will. What has been decided by the judge to decide the case has deviated from the rules of Islamic law because of the issue of inheritance disputes with Muslim heirs who must comply with the rules of Islamic Inheritance Law.

The Role of Sri Hartini as The Regent of Klaten Related to The Corruption of Criminal Acts in Klaten District

The administrators of the state should be obliged to carry out their duties with a sense of responsibility and do not commit disgraceful acts, without strings attached either for personal, family, crony or group interests and do not expect compensation in any form that is contrary to the provisions of the legislation in force. However, Sri Hartini as the state organizer as the Regent of Klaten did it against the law. For this reason, the purpose of this research is how is the role of Sri Hartini as the Regent of Klaten Related to Corruption in Klaten Regency. This research uses descriptive qualitative research methods and data analysis techniques using the Nvivo 12 Plus software and secondary data sources from the Putusan Mahkamah Agung Nomor 55/PID.SusTPK/2017/PN.SMG. And the result is that Sri Hartini's role as a state organizer as Klaten Regent has a very dominant role in committing criminal acts of corruption, gratuity, bribery, and abuse of authority with the new SOTK changes in the Klaten District Government Environment. This can be proven by the percentage generated from the analysis using Nvivo 12 Plus, namely Gratification with a percentage of 35.27%, Network with a percentage of 45.95%, Bribery with a percentage of 38.08%, and Abuse of authority with a percentage of 37.82%.

Analisis Kemaslahatan Pada Putusan MA Tentang Wasiat Waji>Bah Dalam Pemberian Hak Waris Bagi Non Muslim (Studi Analisis Pada Putusan MA No. 51.K/AG/1999)

The objectives of this study are as follows, (1) To find out the legal position wasiat waji>bahin the distribution of inheritance for non-Muslims; (2) To find out the reasons behind the decisionMahkamah Agung in deciding inheritance rights for non-Muslims in the form wasiat waji>bah;and (3) To analyze the benefit of the Verdict Mah-kamah Agung No.51.K/AG/1999. The method usedin this research is the Inductive method, which is in the form of drawing general conclusions or abasic knowledge of specific matters. That is, from the existing facts a conclusion can be drawn. Thistype of research is library research or library research. This research is descriptive and maslahahanalysis. The conclusion of this study, first, the legal position of wills in giving inheritance for non-Muslims in KHI does not mention that a person is prevented from becoming an heir due to religiousdifferences. Non-Muslim heirs in Islamic law are located outside the heirs who have the right toreceive an inheritance, because religious differences become an obstacle to obtaining inheritancerights. The Hanafiyah Ulama viewed the will to non-Muslim heirs as valid and the jurists agreed thatthe testament to the Muslim ghair ahl al-dzimmah was permissible. Therefore, granting inheritancerights to non-Muslims in the form of a compulsory will is legal because religious differences do notbecome a barrier to the validity of a will. Second, in its decision, the Panel of Judges gave reasons forgranting inheritance rights to non-Muslims through a mandatory will without questioning the religionof the heirs by stating that non-Muslim heirs have the right to receive inheritance with the sameproportion as religious heirs. Islam from the inheritance left by the heirs. Third, the researcher foundthat there was a problem in the Supreme Court decision no. 51.K / AG / 1999. First, the existence ofmas} lah} ah according to syara ‘belongs to al-Mas} lah} ah al-Mursalah. Second, the level of needbased on the priority of use is included in the Maslahah Daruriyat aimed at maintaining the purposesof Islamic law (Maqasid al-Syari’ah) and avoiding damage. Third, the content of the maslahah orwhich priority should take precedence is included in the Maslahah al-Ammah. Fourth, change an as afixed or changing limitation, including in Maslahah al-Mutaghayyirah and Fifth, there is a principleof Justice.

Pengikatan Jaminan Kebendaan dalam Kontrak Pembiayaan Muḍārabah sebagai Upaya Penyelesaian Sengketa Debitur Wanprestasi (Analisis Putusan Mahkamah Agung Nomor 272/K/AG/2015 tentang Pembiayaan Mudharabah)

The imposition of collateral in muḍārabah financing contracts is a separate issue for Islamic banks even though in principle Islamic banks are not required to ask for collateral, but in practice, collateral is one of the elements that must be met by business actors in muḍārabah financing contracts. When the collateral is not applied, problems often arise in the case of debtor default. The problem in this study is whether the imposition of collateral can be used as an effort to resolve debtor disputes in muḍārabah financing contracts. To answer the research question, the method used is a normative juridical research method where the law is not only seen as law in books but also the law in action with the statutory approach and case study approach, namely the decision of the Mahkamah Agung. The results of the study presented that binding guarantees in muḍārabah financing contracts can be used as anticipation to minimize the risk of loss based on article 39 of Law no. 21 of 2008 concerning Islamic Banking. When the business actor defaults, neglects, and breaches the contract in muḍārabah financing, the guarantee can be used as an effort to mitigate the settlement of muḍārabah financing disputes to pay off obligations to Islamic banks.

ANALISIS DASAR MENUNTUT PENGGANTIAN BIAYA DALAM GUGATAN PEMBATALAN PERSIAPAN ACARA PERKAWINAN DALAM PUTUSAN NOMOR: 82/Pdt.G/2014/PN.MKS

This research aims to provide information about existing law for one-sided breach of promise of marriage in Putusan Nomor 82/Pdt.G/2014/PN. Mks and to show that the defendant’s conduct of breaching the promise of marriage is a violation of law instead of a default. The defendant’s breach of promise of marriage, according to the plaintiff, brings material loss and shame because she is a doctor widely known in the society and part of the nobility in Tanah Toraja. This research/case shows that immaterial damage claim cannot be sustained in the context of default because damage compensation in a case of default consists of fee, loss, and interest. Immaterial damage claim can only be sustained in the context of violation of law and the judge should refer to article 1365 KUHPerdata about Violation of Law because the breach of promise of marriage is against the norm of propriety and morality in the society. In Putusan Mahkamah Agung RI No. 522 K/Sip/1994, Putusan Mahkamah Agung RI No 3191 K/Pdt/1984 dated 8 February 1986, and Putusan Mahkamah Agung RI No 3277 K/Pdt/2000 dated 18 July 2003, it was ruled that breach of promise of marriage is a violation of law.

RESTATEMENT TENTANG YURIDIKSI PERADILAN MENGADILI PERBUATAN MELAWAN HUKUM PEMERINTAH (RESTATEMENT ON JUDICIAL JURISDICTION IN ADMINISTRATIVE TORT)

One of the crucial problems after enactment of Government Administration Act (UUAP) concerns the extent to which the scope of court jurisdiction relating administrative torts (onrechtmatige overheidsdaad) or OOD, as intended in Article 1365 of the Civil Code. There are at least two different views on the issue. First, administrative court mutatis mutandis has power to resolve the case relating onrechtmatige overheidsdaad, this view is represented by Supreme Court Circular or Surat Edaran Mahkamah Agung (SEMA) No. 4/2016. A different view holds that the OOD act is a genus whereas the factual act as referred to UUAP is a species. This second view is not mutatis mutandis totally transferring the authority of civil judges to administrative court try the OOD case. This difference of opinion is important to be studied more thoroughly in order to know the real issue of the different views.

Analysis of User Needs for Collection Development Activity in Mahkamah Agung Republik Indonesia Library

This study discusses the activities of analyzing user needs in developing collections in specialized libraries. This study aims to identify the practices and constraints faced by librarians in conducting user needs analysis activities at the Mahkamah Agung Library. The activity of analyzing user needs becomes important as an initial step and benchmark in developing collections. This research is a qualitative research using a case study method. The results of this study show that the Mahkamah Agung Library has not analyzed the needs of users in depth. This causes librarians to be confused about how to develop collections cannot determine the procurement of collections. Then more in-depth analysis is needed by auditing information and interviews with users.