Law Reform Research Articles

THEFT PUNISHMENT IN ISLAMIC LAW AND INDONESIAN CRIMINAL LAW: INITIATIVE FOR HARMONIZATION FROM THE PERSPECTIVE OF SHARUR’S BOUNDARY THEORY

This study seeks to find a formula on how Islamic law contributes to Indonesian criminal law reform, particularly in the imposition of theft, by utilizing Sharur's Boundary Theory (Naẓariyyah al-Ḥudūd). This field of research is considered imperative because the implementation of Supreme Court Regulation Number 2 of 2012 concerning Adjustments to the Limits on Misdemeanor Crimes and the Number of Fines in the Criminal Code (Misdemeanor Crimes) is felt to have not been maximized. This study uses normative juridical research methods, with descriptive-qualitative analysis. It can be deducted from this study that the theory of the boundaries of the ijtihad area determines the punishment in Islamic. The punishment for the crime of theft, the amputation of the hands mentioned in the Qur'an, is the maximum form of punishment. Thus, it is possible that there are punishment in other forms that fall under the category of cutting off one's hand, based on several verses of the Qur’an, including in Al-Māʾidah 5:38, al-Isrāʾ 17:33, al-Baqarah 2:178, and al-Nisāʾ 4:92. Even though this opinion may raise objections, for the purposes of reforming Indonesian Criminal Law, it is suggested that this opinion is still relevant for consideration. The study emphasizes the significance of understanding and considering Sharur's boundary theory for judges to make informed decisions in Sentencing.

Hurtful Digital Communications In Hong Kong: Stakeholder Accounts

Hurtful digital communications (HDC) is an umbrella term referring to a wide variety of text and image-based practices online, such as cyberbullying or the non-consensual distribution of intimate images (NCDII). They can cause significant harm to victims and, as elsewhere, these practices are on the rise in Hong Kong. This paper represents the first stage of a project aimed at developing a coherent, broad-spectrum response to that rise. It discusses nine interviews with stakeholder groups or representatives in Hong Kong, revealing commonalities and themes in their experiences with clients who have been victims of HDC. While Hong Kong has recently adopted piecemeal reform of criminal laws targeting certain HDC practices such as ‘up-skirting’, NCDII, and doxing, these interviews suggest that these reforms alone are unlikely prove effective. Amongst other things, the interviews reveal a desire by victims not simply for punishment but resolution and restitution. Other jurisdictions have responded to these desires through the adoption both of expanded civil actions and broader regulatory regimes. This paper sets the groundwork for justifying similar reforms in Hong Kong. Keywords: Law, Technology, Cyberbullying, NCDII, Communications, Hong Kong, Privacy, Tort, Regulation

When law struggles to deliver: Reflections on service delivery law reform in South Africa, 1996–2024

When law struggles to deliver: Reflections on service delivery law reform in South Africa, 1996–2024

Bilateral investment treaties and investors’ social accountability: the law and praxis in South Asia

Purpose International investment law governs matters related to transnational investments. The extensive reach of transnational corporations (TNCs) has granted them substantial economic, political and social influence, often intertwining them with public interest issues and implications in human rights violations. This paper aims to explore the profound influence exerted by TNCs in today’s globalized world and its implications for human rights and social responsibility within the framework of international investment law. Particularly, it acknowledges the vulnerability of economically weak South Asian states and cites past instances such as the Bhopal gas tragedy in India and the Rana Plaza disaster in Bangladesh as egregious violations of human rights. Focusing on South Asian bilateral investment treaties (BITs), this paper aims to examine the scope of investors’ social accountability. Design/methodology/approach This research engages with doctrinal and analytical methods in traversing through primary and secondary sources. It would parse the arbitral tribunals’ jurisprudence for their discussion on the inclusion of social accountability obligations within international investment agreements (IIAs). Further, it engages in a quantitative analysis related to the nature of the social accountability-related obligation of the corporation within South Asian BITs. Findings The findings reveal a glaring absence of the law on investors’ social accountability and the need for enhanced regulatory mechanisms to address the escalating influence of TNCs on human and social rights. The absence of a robust legal framework, coupled with the asymmetric nature of international investment law, granting investors greater rights and leverage compared to states, exacerbates this challenge. The phenomenon of “regulatory chill” inhibits states from effectively enforcing regulatory measures aimed at protecting human rights and the environment. Furthermore, the broad interpretation of clauses such as “fair and equitable treatment” by investment tribunals often undermines states’ ability to implement measures in the public interest. While international organizations such as the UNCTAD and the UNCITRAL Working Group III are actively discussing reforms to IIAs, the existing guidelines addressing investors’ social accountability are woefully lacking in the content as well as the method of their integration with international human rights law. The findings underscore the imperative for South Asian nations, the subject of this research’s empirical analysis, to adopt a comprehensive approach involving both domestic law reforms to promote corporate social accountability and active pursuit of negotiations for the inclusion of binding social obligations for investors within IIAs. Practical Implications This research, drawing upon international law developments, offers suggestions for incorporation of social accountability provisions via relevant domestic law reform. The research could be viewed as a prelude for mapping the legal developments in the area of investors’ social accountability within investment agreements, as well as investment contracts, drawing guidance from international law instruments. Originality/Value To the best of the authors’ knowledge, no other study analysed the scope of investors’ social accountability in South Asian BITs.

Is the Korea Fair Trade Commission Abusing the Provision for Abuse of Superior Trading Position?: A Critical Analysis of the Act on Fair Intermediary Trade of Online Platforms

Abstract This paper examines the economic impact of the abuse of superior trading position (ASTP) provision within Korea’s draft Act on Fair Intermediary Trade of Online Platforms (AFITOP). The AFITOP, proposed as part of competition law reform in the digital era, applies to large online platform operators providing intermediary services. While derived from the Monopoly Regulation and Fair Trade Act (MRFTA), the ASTP provision’s goal to protect the economically weak is secondary to the MRFTA’s primary goal of efficiency. Furthermore, the provision’s interpretative uncertainties burden enterprises, especially large ones and those exploring new business models. Including this provision in the AFITOP is likely to reduce innovation incentives among large online platform operators, and to foster enforcement bias toward the ASTP provision by the Korea Fair Trade Commission, thereby increasing inefficiency in competition law enforcement. Therefore, the ASTP provision in the AFITOP should not be introduced.

Keadilan Restoratif dalam Dinamika Pembaruan Hukum Pidana Indonesia

The purpose of this study is to assess the effectiveness of the implementation of restorative justice in handling certain criminal cases in Indonesia. The type of research used is descriptive. Which means that this research will be discussed in the form of a presentation that is elaborated in words carefully and thoroughly. In this case, the presentation of the concept of restorative justice as a means of resolving non-litigation cases (outside the court) and its relevance to the dynamics of criminal law reform in Indonesia. The approach method in this study is a normative juridical approach method. As a result, criminal law reform must be formulated with a policy-oriented approach, as well as an approach oriented to the values that live in society. Restorative justice as one of the alternative case resolution in the criminal justice system that focuses on restoring the original situation by involving victims, perpetrators and the community is one of the efforts in criminal law reform that is oriented not only to retaliation.

The Ex-Terrorist Social Reintegration Based on Community Participation Through a Corporate Social Responsibility Program

This study examines how former terrorism convicts or prisoners can be integrated into society using the company's CSR funding help strategy. The author discovers a gap in regulatory standards because the Terrorism Law solely governs measures to prevent and suppress terrorism. This research aims to provide an overview of the reform of the Terrorism Law and the social reintegration model for former convicts using an empirical research model that involves interviewing sources. The findings of this study suggest that the Terrorism Law should be amended and the BNPT reimagined as an entity dedicated to preventing terrorist attacks in Indonesia.

The Law, Dementia, and Sexuality-Is the Law Striking the Right Balance?

English and Welsh laws require "contemporaneous" consent to sexual relations, often precluding "non-capacituos" people living with advanced dementia from these human interactions. The views of people living with dementia, carers, professionals, and over-55s were explored on implications of current laws on sexuality in dementia. Thirty-five participants from England were recruited through purposive selective sampling. Audio-taped semistructured interviews were transcribed and thematically analyzed with each stakeholder group coded separately. Common themes across stakeholders were (i) law reform needed due to their hammer-like effect ignoring the individual; (ii) dissonant theme of needing the law for protection; (iii) negative impact of denied intimacy on individuals and partners; (iv) support for Advance Decisions on Intimacy with caveats; (v) less support for involvement of Court of Protection and Powers of Attorney; (vi) call for review of capacity concept with support for an assent model. People living with dementia described shame and stigma associated with policing of their sexuality and perception of being singled out for protection and intrusion into their lives. For informal carers (mostly wives), the theme of "what about me" emerged, demonstrating that for the long-term partnered, this is a couple's issue. Practical implications of this study include need to address ageism and ableism; human rights education for society and professionals; starting point of presumed capacity for sexual relations with consensus on how and when this should be rebutted; and care homes' certification requirements should incorporate assessment of the relationship health of their residents.

Bankruptcy reforms and corporate debt structure

A growing number of jurisdictions have adopted bankruptcy law reforms to facilitate debt restructuring. Using a difference-in-differences model based on bankruptcy law reforms in six economically advanced jurisdictions, we discover that firms adopt more diversified debt instruments following the reforms. Importantly, firms that are more vulnerable to a tightening of credit supply are more adversely affected by the legal changes, and they also decrease overall debt borrowing and investment. Moreover, firms affected by the reforms use secured debt less frequently, aligning with the idea that these legal changes diminish the protection afforded to secured creditors. In addition, borrowing costs rise after the reforms, implying that creditors may adjust the terms of debt contracts to counterbalance the decreased legal protection.

Mapping the Cross-Border Influence of Regional and International Reproductive Rights Cases

Abstract International and regional human rights mechanisms are essential tools for ensuring access to justice for human rights violations and advancing measures of non-repetition, such as domestic law and policy reform. Scholarship on the impacts of these mechanisms have largely centred on the resulting domestic law and policy reform in the countries at issue in these cases and the resulting normative standards human rights bodies have established. The cross-fertilization of these cases among other international and regional human rights mechanisms and domestic courts remains an important but underexplored aspect of how such cases influence progress towards the realization of human rights. Through the lens of four landmark cases on sexual and reproductive health and rights, this article examines the influence of these cases in jurisprudence from across the globe, demonstrating how such decisions have reverberated across borders. These rippling effects of strategic litigation constitute an important impact that should be taken into account when evaluating the influence and efficacy of these mechanisms.

Mournful Mothers and Damaged Damsels: Are We Really Listening to Women During Parliamentary Human Rights Scrutiny?

Scrutiny regimes in some Australian parliaments require consideration of human rights impacts of proposed legislation, but routinely ignore gendered impacts of legislation, particularly those relating to alcohol and other drugs. Where women's voices are heard, they are often only listened to according to stereotypes. Drawing on Anne Summers’ work on stereotypes of Australian women, an analysis of reports and hearing transcripts from major parliamentary inquiries into drug law reform, and in-depth interviews with those involved in parliamentary human rights scrutiny, we argue that parliamentary scrutiny regimes perpetuate paternalistic accounts of women to be pitied or punished: the ‘mournful mother’ whose child is affected by alcohol or other drugs and needs to be heard, and the ‘damaged damsel’ who is themselves affected by alcohol or other drugs and needs to be protected. This raises the question: are women listened to during parliamentary scrutiny processes or simply talked about in stereotypical ways?

The Flexibility of Company Law: The Lessons of the Hungarian Law Reform

Until 2013, the substantive rules of Hungarian company law were regulated by various company acts. When Hungary adopted a new Civil Code in 2013, it included, for the first time in Hungarian legal history, the substantive rules of company law. One of the most controversial novelties of the new company law rules was the provision that gave unprecedented freedom to company members to deviate from the company law rules of the Civil Code, as long as the Civil Code does not expressly prohibit the deviation or it does not manifestly prejudice to the rights of creditors, employees or a minority of the members of the legal person or hider the supervision of the lawful operation of the legal person. This article analyses this provision from a comparative perspective. The analysis compares the English, American, German and Hungarian solutions and finds that there are significant differences regarding the right of the parties to determine the company’s articles of association. Building on the findings of this comparison, the article argues that a more enabling regulatory approach could facilitate the pursuit of interests beyond the narrow interests of company members, using the example of corporate purpose and employee participation.

Scotland in the Forefront of Property Law Reforms in the UK: Potential Implications for the Scottish People

Abstract The Scottish Government has taken steps to revolutionise its body of law on ‘trust and succession’ and housing. The recent Trusts and Succession (Scotland) Act 2024 has severally impacted the issues of appointment and removal of trustees, fiduciary duties of trustees, rights of beneficiaries, and Environmental, Social, and Governance (ESG) investments in Scotland; while the proposed new Housing (Scotland) Bill 2024 has the proclivity of influencing rent, rent control areas, eviction and homelessness in Scotland. Accordingly, this paper focuses on exploring the potential impacts of these legislative reforms on the lives of the Scottish people. Do they ‘make’ or ‘mar’ the proprietary rights of the Scottish people? Are all the provisions useful to Scotland’s rental market? Will the proposed ‘ask and act’ approach address homelessness in Scotland? This paper will also be important to jurisdictions that may intend to modernise their property law and housing regimes.

CRIMINAL LAW REFORMS IN RECENT TIMES: ISSUES AND CHALLENGES

Criminal law is basically a fundamental part of the judiciary system, which protects society and upholds justice. The main purpose of this law is to maintain social order and rehabilitate offenders. Ensures to protection of the rights of individuals and maintains rules regarding illegal and legal behaviour. In India criminal law protects citizens and improves overall justice delivery. The new criminal laws especially emphasize the human rights of the citizens and provide effective outcomes for victims. The modification and introduction directly contribute towards reducing the crime rate and ensuring India's justice system becomes more robust and simple. The importance of reforms and changes in the proper legislation process highlighted the fact that the existing laws are specially backdated. A certain colonial Era is directly reflected in the Justice system. Several old laws in the section have become irrelevant and undoubtedly delay the overall justice system. However, there is a certain concern which can reflect the criminal law reforms in India. Misuse of power by certain authorities and inappropriate implementation can cause severe consequences. The criminal law has been amended many times which enables a legal framework to maintain societal changes and emerging challenges along with technology advancement. When the criminal justice system came to deliver justice by mitigating delay and compliance it created a fair justice system for communities and people. The idea of reform of criminal law mainly emphasizes victim empowerment, modernized evidence rule and many more. Also, certain areas needed to be addressed such as accountability, transfer, privacy, freedom of speech, the potential for abuse and interpretation and implementation challenges. Recent significant criminal law reforms in India here will be discussed and challenges or issues will be identified properly. Bharatiya Nyaya Sanhita (BNS) replaced the Indian penal code (IPC) and mostly aimed to influence the severity of punishment and criminal offences. Bharatiya Nagarik Suraksha Sanhita (BNSS) is a modified version of the Code of Criminal Procedure (CrPC) which focuses on victim protection and streamlining investigations. The Latest version of the Indian Evidence Act is Bharatiya Sakshya Adhiniyam (BSA) which incorporates forensic advancements and digital evidence. Those laws have been implemented with several challenges and issues but they also foster the judiciary system of India. These new laws effectively prioritize victims' rights and developed Updater support mechanisms for them also simplify the legal processes by reducing delays.

Comparative secured transactions law: how and to what extent do global standards affect the reform of Japanese inventory financing law

Abstract Since March 2021 Japan has been undertaking official legislative discussions at the Committee of Secured Transactions Law Reform under the Legislative Council of the Ministry of Justice Japan to draft a statute of secured transactions of personal property. These discussions are now in their final stages. Enhancing the reliability and feasibility of security devices for inventory financing is the core purpose of the proposed legislation. As a result of policy-making decisions, the conventional Japanese security device of ownership transfer for security purposes will not be replaced by a new regime which reflects the modern principles originating from the UCC9 and illustrated in the UNCITRAL Model Law on Secured Transactions. However, the significance of such global standards in the context of Japanese law has been two-fold. First, they illustrate what conventional Japanese law achieves through its own alternative rules. Second, the Council Committee is likely to propose several changes to refresh our conventional security device by adding new principles which have traditionally been of less concern to Japanese practitioners. In this article, the author substantiates the influence of these global standards on Japanese legislation. This article focuses on the functional approach taken by the ownership transfer type security interest, the rules relevant to publicity of security interests as modified by the first-to-register-or-possession rule as suggested by global standards, the concept of aggregate of inventory as collateral as modified by registration to cover perfection in security interests in goods joining the aggregate after a debtor's dishonest disposition, and the assignment of accounts receivables accompanied with ownership transfer of inventory which may be viewed as functionally close to security interests in proceeds of inventory.

Policy on Environmental Law Reform in the Context of Environmental Preservation in Bandar Lampung City

Policy on Environmental Law Reform in the Context of Environmental Preservation in Bandar Lampung City

Donor conception, direct-to-consumer genetic testing, choices, and procedural justice: an argument for reform of the Human Fertilisation and Embryology Act 1990.

In this article, using theories of procedural justice and 'slow violence', we consider potential reform of the Human Fertilisation and Embryology Act 1990. Our theoretical discussion is underpinned by findings from the ConnecteDNA project, exploring how people affected by donor conception experience direct-to-consumer genetic testing (DTCGT). The negative impacts of DTCGT, especially shock discoveries about the circumstances of someone's conception in adulthood, are linked to donor anonymity, and how its continued protection is experienced as a barrier to the rights and agency of donor-conceived people. We focus on two key issues relating to the donor information access process set out in section 31ZA of the 1990 Act. The first is that it excludes certain cohorts of donor-conceived people, creating inequalities of access to donor information. The second is the impact of the use of DTCGT to search for that information. We discuss what a procedurally just process of law reform would look like, concluding that, whatever (prospective) approach to donor anonymity is taken, the donor information access process should be the same for all donor-conceived people. We thus argue that, even were the status quo to be maintained, reform of the donor information access process with retrospective effect would be required.

Giving Meaning to Consent at the International Criminal Court and Beyond: A (Qualified) Defence of Consent

ABSTRACT This article examines the concept of consent in the context of rape and sexual violence within the framework of the International Criminal Court (ICC). Lack of consent is not required to be proven in relation to charges of rape in the Rome Statute, an aspect praised by feminist legal scholar Catharine MacKinnon. A significant and contested feature of MacKinnon’s theorisation of rape is her argument that such a standard should also serve as a model for domestic laws. However, it is not clear that the ICC’s current framework regarding consent and the means to address sexual violence is as robust as MacKinnon suggests. Importantly, our analysis of the international experience takes place against a backdrop where in many domestic jurisdictions consent remains firmly entrenched in law reform efforts to address the ubiquity of sexual violence. Drawing primarily on recent law reform examples from Australia, where the trend has been toward affirmative models of consent, we consider how consent is positioned within them. We argue that consent still has a place in measures in both domestic and international jurisdictions aimed at addressing the structural inequalities and power dynamics underpinning sexual violence, MacKinnon’s privileging of the measures in the international jurisdiction notwithstanding.

Education legislations that equalize: a study of compulsory schooling law reforms in post-WWII United States

Compulsory schooling laws are commonly believed to be effective measures in ensuring individuals benefit from education. However, their implications for racial equality are less-apparent. Exploiting timing and geographic variation in legislation reforms among Southern U.S. states, this study evaluates the differential impact of minimum school-leaving age requirements on short- and long-term labor market outcomes between Black and White men. Results show that each additional year of compulsory schooling produces about 7.3–8.2% increase in adulthood weekly income. While there exists a substantial gap in returns to education between Black and White men at early career stages, this gap is reduced by 37 percentage points at mid-late career. Findings imply that mandating compulsory school attendance motivates both Black and White men to stay in school longer, and thus reducing racial gaps in returns to education.

Forum-shopping in criminal law: power and pragmatism in gayo, Aceh, Indonesia

In one of her earliest publications Keebet von Benda-Beckmann examined how villagers in West Sumatra engaged strategically in forum shopping and with shopping forums under conditions of legal pluralism. The insights in her article how this influenced the power constellation in the village have inspired many researchers to look at the interplay between justice seekers and forums for dispute resolution in a plural legal landscape, and how in this process authority is produced. Our article builds on Keebet’s work, looking at forum shopping in cases of sexual offences in Gayo (Aceh). We discuss how the post-conflict reform of criminal law in Aceh has led to a state-sanctioned condition of legal pluralism consisting of national law, customary (adat) law and Aceh jinayat (Acehnese Islamic criminal law). Village officials, human rights activists, police and prosecutors channel crimes into the legal system that best suits their goals – sometimes in conformity with, sometimes in violation of the formal rules of jurisdiction. The result is a new balance of power between these actors, in which – surprisingly – adat officials and police have gained most from the introduction of Aceh jinayat. However, the introduction of state legal pluralism has not produced competition between the constitutent legal systems, but rather expanded the potential for more differentiated responses to sexual offences in a society characterized by profoundly conservative values.