Statutory Law Research Articles

Reproduction of Islamic Law in The Era of Globalization and Pluralism

The rise of globalization values: secularism, capitalism, legal liberalization and democratic freedom that is sweeping the world today can create a disharmony of diversity during legal pluralism that exists in Indonesia between state law, religious law and customary law. The context of reproduction in this study redesigns policies based on Islamic law that have a vision that can moderate diversity in Indonesia so that the existence of Islamic law can be accepted in the context of diversity and diversity in an inclusive manner. To conduct the research, the author uses conceptual approaches and statutory law. As a result, the author concluded that legal pluralism in Indonesia should not occur strong autonomy in each legal system but increasingly interact and interconnect in the context of moderation, this complementary reproduction model of pluralism is being designed in this study.

PROSPECTS FOR IMPLEMENTATION OF BUILD OPERATE AND TRANSFER IN INDONESIA

A form of cooperation between the government and business entities in providing infrastructure for the public interest by referring to specifications previously determined by the government or parties representing the government officially, where some or all of it uses resources owned by the business entity, taking into account the distribution of risks between the parties involved in the collaboration [1]. Government cooperation with business entities for infrastructure development is outlined in the Build-Openrate and Transfer (BOT) model. The research method that the author uses in this research is normative juridical, namely research that examines written legal norms by referring to related legal provisions. The prospect of implementing BOT in Indonesia legally can be carried out based on freedom of contract and good faith, new regulations by the government, and the opening of Indonesia in the era of globalization to contracts that have been accepted internationally. Economically, BOT can support and facilitate development and business activities, whether carried out by individuals, companies, or the government. The obstacles encountered in implementing BOT include the inadequate substance of statutory regulations and law enforcement practices, including unsupportive jurisprudence. Convoluted bureaucratic interference in the process of building public facilities, as well as the long BOT period, which allows for changes in the parties involved in the BOT, creates doubts for parties who have no experience as BOT recipients.

ANALYSIS OF THE DISPUTE RESOLUTION MECHANISM OF THE TRIUMVIRATE MINISTER AS THE EXECUTOR OF PRESIDENTIAL DUTIES IN INDONESIA

The 1945 Constitution regulates the position of triumvirate ministers, including the Minister of Home Affairs, Minister of Foreign Affairs, and Minister of Defense, collectively empowered to replace the president and vice president in case of a vacancy. The exercise of this authority increases the likelihood of disputes among the three ministers while performing presidential duties in Indonesia. The conflicting implications of the triumvirate minister position and its assumed powers stem from the diverse backgrounds of the three different institutions. Therefore, a clear mechanism is necessary for resolving conflicts among triumvirate ministers. This study employs normative legal research methods with a statutory law approach, utilizing primary legal material and secondary legal materials such as books and journals. The findings reveal that the dispute resolution mechanism for triumvirate ministries is fundamentally within the purview of the Constitutional Court, as affirmed by the Constitution. However, a lack of detailed derivative regulations has led to a blur in norms related to the interpretation of state institutions outlined in the Constitution. This gap arises due to the absence of regulations that provide a comprehensive explanation of these state institutions.

Awareness of Public Elementary School Parents on the Legal Provisions of Anti-Child Labor Law: Basis for Intervention Plan

The Philippine Anti-Child Labor Law (Republic Act 7658) is a statutory law aimed at protecting children under 15 years old from working in public or private establishments. It consists of two areas: Information Dissemination and Penalties. The law aims to promote awareness and prevent violations, with penalties such as fines or imprisonment. A study was conducted to determine the level of awareness of public elementary school parents in a second-class municipality during the 2021-2022 school year. The results showed that the majority of respondents were older, female, and from larger families. The overall awareness of parents on the law was "High," with a high level of awareness grouped by age, sex, family size, and average family income. However, there was no significant difference in awareness among respondents based on age, sex, family size, or average family income. The findings suggest that barangay authorities and school administration do not collaborate to address child labor issues, as the community lives in poverty and relies on cheap manual labor. Additionally, older respondents should be made aware of the penalties for violating provisions of Article 12 of the law.

Analisis Sejarah Ekonomi Terhadap Aliran Institusional

Institutional Economics is a school of thought in economics which contains the view that economic behavior, where a person or party is greatly influenced by certain institutions. In this case, institutions themselves have a fairly broad meaning and can be briefly defined as the "rules of the game" in a community group, both formal and informal, which are deliberately designed to limit or regulate relationships between people within that community group. Formal institutions can be in the form of rules, regulations, statutory law and others; while informal institutions can be conventions, trends, culture, and so on. Thus, institutions here are not the same as organizations. The Institutional School initially emerged as a refutation of the neo-classical economic view or school which states that a person's economic behavior is solely based on each individual's desire to maximize profits (maximizing profit behavior). The term "institutional economics" was first introduced by Walton Hamilton in 1919.

Reasonableness of ICC Judgment of the Bashir Case from the International Status, Clause Conflicts and Scope of Application

This article addresses the International Criminal Court ruling in the Bashir case from the perspectives of the International Criminal Courts position following the United Nations Security Councils referral of the case, and the conflict between Articles 27 and 98, which in the Rome Statute, and the rationale of Article 27s scope of applicability. The immunity ratione personae can be divided in to two parts: Rome Statute and customary international law, which are the principal sources. Sudan is not the contracting party of the Rome Statute, and the Rome Statute only applies to signatories. This essay first contends that the position of the International Criminal Court in the Bashir case has not altered toward a vertical connection after the United Nations Security Council transferred the case. Second, the field of applicability of Article 98 should be broadened, and Article 27s effective time should not be restricted to the appeals phase. Third, the International Criminal Court cannot demonstrate that there is an existing case in which the immunity of in-service leaders of state has been revoked in international customary law. In the end, this article contends that the International Criminal Courts ruling of the Bashir case is irrational and insufficiently supported by the facts. Sudan is a third country to the Rome Statute, had its rights violated by the International Criminal Courts explanation of Article 27.

To the Issue Concerning Analogy of Statute and Analogy of Law in Conflict of Laws Framework

Problem statement. The present research stems from acknowledgement by several specialists regarding “analogy of statute” and “analogy of law” application in Private International Law of the Russian Federation. The author considers this proposition as contradictory to article 1186-2 of the Civil Code of the Russian Federation and conflict of laws essence. Goals and tasks of the research. The main goal of the research is to substantiate inapplicability of “analogy of statute” and “analogy of law” in Private International Law of the Russian Federation. The indicated goal presupposes following tasks, i. e. to reject applicability of article 6 of the Civil Code of the Russian Federation in conflict of laws framework; to prove substantial inappropriateness of “analogy of statute” for choosing applicable law and to show direct application of the closest connection principle in case of conflict of laws rules absence. Methods. Methods of the research embrace general scientific and particular scientific. The first are represented by general tools of logic, including analysis, synthesis, induction, deduction and analogy, as well as systemic approach; comparative legal method plays key role among the second. Results, brief conclusion. The main conclusion of the research is that conflict of laws framework is not aware neither of “analogy of statute”, nor of “analogy of law” as utilized by the Civil Law. In conflict of laws, the closest connection principle, as general gap-filling conflict of laws rule according to article 1186-2 of the Civil Code of the Russian Federation, steps up as sole conflict of laws instrument when it is impossible to choose applicable law on the basis of existing conflict of laws rules stipulated by international treaties of the Russian Federation, Civil Code of the Russian Federation, other statutes or customs acknowledged in the Russian Federation.

The Crime of Corruption Codified in Law Number 1 of 2023

Objective: This research aims to analyze changes in criminal law, particularly in the context of corruption, within the new Criminal Code in Indonesia. It explores the reasons behind the rejection of certain provisions in the new Criminal Code, especially those related to the punishment for corruption offenses. Theoretical Framework: The theoretical framework of this research is rooted in the field of criminal law and legal reform. It considers the evolution of criminal law in response to societal needs and expectations. The study also examines the principle of proportionality in criminal sentencing, particularly concerning corruption offenses. Method: This research adopts a normative legal research approach, relying on an analysis of existing legal texts and previous studies related to criminal law in Indonesia. The primary data sources include statutory laws in Indonesia, while secondary data sources consist of scholarly works and legal analyses. Result and Conclusion: The findings of this research reveal that the rejection of the new Criminal Code is primarily due to the removal of specific articles related to corruption. In the new Code, corruption offenses are no longer categorized as extraordinary crimes but are treated as ordinary offenses, akin to theft. This shift has implications for law enforcement authorities, such as the police, the prosecutor's office, and the Corruption Eradication Commission, as it blurs the lines of their jurisdiction and responsibilities in addressing corruption. Originality/Value: This research contributes to the understanding of the legal changes brought about by the new Criminal Code in Indonesia, with a specific focus on corruption offenses. It highlights the concerns and implications of categorizing corruption as an ordinary offense, potentially impacting the effectiveness of anti-corruption efforts. The study's value lies in its ability to inform policymakers, legal practitioners, and scholars about the complexities surrounding criminal law reform and its consequences in the context of corruption.

Advancing Women's Rights to Joint Ownership of Matrimonial Property in Nigeria: Using Kenya as a Model

This article critically reviews the concept of matrimonial property in Nigeria, with particular reference to real property and the rights of spouses to it during marriage dissolution, against the backdrop of extant statutes and case law on the subject, and makes a case for a reform using Kenya’s progress in this area of law as a model. It identifies gaps and inconsistencies in the existing statutes and case law on the subject in Nigeria which render many verdicts controversial, unsatisfactory and inequitable. First, the reviewed literature identifies that neither statute nor case law proffers a definition of matrimonial property. Secondly, the only criterion in the Matrimonial Causes Act 1970 for sharing property amongst spouses upon divorce, which is to the Judges’ discretion, has often been wrongly applied to stress substantial contribution in financial terms. This is due to the fact that the common law principle adopted in matrimonial property sharing upon dissolution of all types of marriages in Nigeria stresses substantial contribution in financial terms. This common criterion is unrealistic in light of modern global and local economic, social, and cultural realities; its application is also obsolete in the English jurisdiction where it originated. This paper therefore makes a case for the emergence of a law which will define matrimonial property and also specifically state the rights of spouses and resolve lingering issues of inconsistencies and lack of fairness arising from both the existing statutes and case law using Kenya’s progress in matrimonial property system as a model.

Transition Of Authority Judicial Institutions Simultaneous National Elections 2024

The decision of the Constitutional Court No. 97/PUU-XI/2013 resulted in changes in the function and authority of the judicial institution that adjudicates Pilkada. The Constitutional Court's decision then gave birth to Article 157 of Law No. 10 of 2016 Amending Law No. 8 of 2015 (Pilkada Law) which contains provisions for the establishment of a special election judicial body that will hear disputes over the results of simultaneous national elections in 2024. However, the establishment of a special election judicial body mandated by the Pilkada Law still faces juridical obstacles if it is linked to Law 48 of 2009 concerning Judicial Power, and laws governing judicial bodies under the auspices of the Supreme Court, especially the general and state administrative courts. Another juridical problem is the Constitutional Court Decision Number 85/PUU-XX/2022 which states that the phrase "until a special judicial body is established" in Article 157 paragraph (3) of the Pilkada Law does not have binding legal force. So that the Constitutional Court's decision can be interpreted as a sign of defining the Constitutional Court as a permanent judicial institution to hear disputes over Pilkada results. This research uses normative research methods as a characteristic of legal research, using statute law approaches, expert opinions. The purpose of this research is to search and find the right norms and have legal arguments in determining the right judicial institution authorized to hear disputes over the results of the 2024 simultaneous regional elections.

Recognition of Marriage by Repute: Its Implications on Customary Law and Gender Justice in Malawi

Since 1995, the Constitution of Malawi has recognised marriage by repute or cohabitation as a form of marriage in the country. However, it was only in 2015 that the Marriage, Divorce and Family Relations Act formalised such a marriage by providing a criterion for courts by which the existence of the marriage can be determined. The authors argue that this Act reflects upon society by accepting this form of marriage even in traditional society. Through discourse analysis and doctrinal research methodology, the article traces how the initial concept of a valid marriage has changed to accommodate and recognise this form of marriage. Even before the statutory law had operationalised this form of marriage, traditional leaders, as a way of determining the validity of marriages, clothed these unions with some rights ordinarily attached to married people. Customary law is not static but changes over time even in a process of cross-fertilisation with statutory law, where each is culpable of being shaped and also shaping the other. The recognition of marriage by repute has changed the marriage terrain in Malawi where eighty per cent of marriages are contracted under customary law, providing gender justice for women who were initially disadvantaged when such unions were not regarded as valid marriages by not complying with formal marriage requirements in terms of custom. Such women lost all rights afforded to a wife and the necessary benefits that she would have had in a valid marriage.

A Special Status Victim: Criminal Liability for Assaulting a Government Official in Ukraine and Other Countries

The paper discusses some emerging issues of criminal liability for assaults against public officials in various jurisdictions. Emphasis is placed both on the comparative approach to analyzing the relevant criminal statutes and on the specific legal framework for the protection of the life and health of law enforcement officers. Based on the provisions of statutory criminal law and the case law of several countries, it is shown that the life, health and property of law enforcement officers enjoy a higher level of protection. This is explained by the fact that such persons are direct representatives of the state, perform their duties in public, remain under public scrutiny and, therefore, may become an easier target for assault crimes. In the conclusions of the research, it has been argued that the determination of the legal grounds, scope and limits of protection of public officials by criminal law should be carried out at the national level (or state level in a federal jurisdiction), based on the orientations and principles of the domestic criminal law policy and program of a given nation.

Analyzing the Writ Jurisdiction of High Courts: A Case Study from Pakistan

The primary and the most important function of judiciary in a country is to establish the rights of the citizens and to safe guard the same. And thus, to enforce the fundamental rights laid down in the constitution. In Pakistan, the judiciary either higher or the subordinate performing the same functions with true sprite, following the constitution and the statutory laws to ensure that every citizen is guaranteed his fundamental rights in light of Article 9 of the Constitution of Islamic Republic of Pakistan. In this research paper, the role of high courts will be discussed under article 199 of the constitution, and this research paper will unfold the power of high courts to enforce fundamental rights. In this paper, the writ jurisdiction of the high court will be explained related to the establishment of fundamental rights.

Elements of universal jurisdiction in criminal matters: Rome statute (1998) and domestic law in the Colombian case

The process of defining competences for the repression of serious attacks against human rights and international humanitarian law, has been the product of multiple events. It impacted the decisions of the international community and caused a modification to the legal orientation of the nations. It can be said that this process has been the result of the globalization of world activity, a principle that a few decades ago could not have anticipated the evolution that this concept under study will inevitably have. This article analyzes the elements of universal jurisdiction that are linked to the Rome Statute, which compelled us today to react and change our main notions on international justice. The text has been developed using a qualitative method of a hermeneutic, comparative and teleological nature. It uses methodological instruments of a historical, reflective, descriptive and propositional, argumentative type.

Revitalisasi Baitul Maal Wat Tamwil sebagai Pilar dalam Meningkatkan Perekonomian Masyarakat

This research discusses the revitalization of Baitul Maal Wat Tanwil (BMT) as a pillar in improving the community's economy. The focus of the research examines solving economic problems by knowing the basics of improving the community's economy through Baitul Maal Wat Tanwil (BMT). The research method used is normative research, by explaining the problems of Baitul Maal Wat Tanwil (BMT) through data associated with the legal basis of the underlying statutory law. The data sources in this study were taken from BMT-related institutions and described using narration. The results of research in this study, namely that Qardhul Hasan financing, is very helpful for people who want to develop their business by borrowing capital funds from BMT institutions without worrying about additional payments (usury). ). Baitul Maal Wat Tanwil (BMT) has a message as a means to avoid non-Islamic economic transactions, encourage economic activity in small business capital, avoid borrowing from moneylenders, and maintain community economic stability.

Dammed Waterways and a Colonial Legacy: Statutory Law-Making in the Conservancy of Indian Fisheries, 1867-1897

Abstract Through an exploration of events that unfolded from the earliest calls for conservancy of Indian fisheries under the British colonial government in 1867 to the passing of a statutory law in 1897, we argue that colonial law-making was a non-linear and complex evolutionary, rather than transformational process. The basis and blueprint for a statutory law in India can be traced to similar concerns in the over-exploitation of riverine fish in Britain as well as to the implementation of Indian forest laws at about the same time. Moreover, the process had to deal with personalities and their claims for recognition while the colonial government sought legitimacy to exert control over resources by appointing highly competent and commended individuals. Concerns over food security as well as the possibility of resistance of the local population could have impelled the need for caution in implementing statutory laws, which may have ultimately resulted in a delay of three decades before the Indian Fisheries Act was finally passed in 1897.

PUBLIC INTEREST AS A DETERMINANT OF STATE INFLUENCE ON THE FINANCIAL MARKET IN THE EUROPEAN UNION

The article discusses the issue of the influence of public interest on the regulation of the financial market. The basic challenges for regulators associated with the dynamic development of this market are presented. Anew regulatory paradigm aimed at introducing and implementing values necessary for the proper functioning of the financial market is discussed. The need to protect non-professional participants of this market is emphasized in particular. A new approach to the consumer model is taken into account where the rational consumer has become more susceptible to emotions and irrational behaviors. The special role of financial market stability is highlighted, which has become a kind of public good that is subject to special protection. The way in which public interest materializes in financial market regulations, not only in statutory law but also in soft law norms, is also discussed.

Delegation and Directors' Reliance on the Performance of Others – A Companies Act 2008 Analysis in the Light of International Best Practices

South Africa has included in the Companies Act 71 of 2008 (the Act), provisions dealing with directors' delegation and reliance on the performance of others for their (the directors') own performance. In keeping with their role of managing the affairs of the company in terms of section 66(1) of the Act, directors must make decisions in the best interests of the company. Given the company board's strategic role in the company governance, as opposed to the day-to-day management done by the executive management, directors must rely on the performance of others to fulfil their role. These "others" include professional experts and company employees who can either provide guidance/specialist advice or to whom the board may delegate certain powers and authority to perform certain functions geared towards providing the board with a basis for decision-making. This article in the main interrogates the question whether South Africa has now established globally competitive legal standards of directors' delegation and reliance on the performance of others in line with company law reform objectives prior to 2008. One such objective is ensuring compatibility and harmonisation of the new company law with the best practice jurisdictions internationally as a way of promoting the global competitiveness of the South African economy. In this respect this article examines relevant laws in two foreign jurisdictions to provide a comparative aspect to the relevant South African company law aspects. First the article very briefly examines English law, which provides South Africa with its common law heritage of the duty of care, and it is argued that reliance and delegation relate to the irreducible minimum standard of care and the standard to exercise independent judgment. An examination of Australian statutory provisions on reliance and delegation is followed by a critical evaluation of reliance and delegation in section 76(4)(b)-(5) of the Companies Act 2008. It is concluded that South Africa has established globally competitive principles of reliance and delegation. Nonetheless, there are gaps in statutory reliance and delegation provisions under the Act, and lessons can be drawn from the best practices in Australian statutory and case law. Firm suggestions are made on how the gaps can be plugged and how the legal standards can be further tightened to enhance the global competitiveness of South African company law.

Legal Aid with regard to Right to Fair Trial in Pakistani and International Law: A Comparative Approach

The key objective of this article is to analyze the concept of legal aid, its significance, challenges, and potential solutions. This article by using the doctrinal research methodology, presents a comparative analysis of legal aid “in the context of international law” and Pakistani law, highlighting “the” similarities and dissimilarities between the two systems. Access to justice and legal representation are fundamental principles in international and national legal frameworks, ensuring that individuals have adequate assistance in navigating the legal system's complexities. This article examines the relevant provisions in international instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which underscore the importance of legal aid. Additionally, this article explores the role of international organizations, such as the European Court of Human Rights, in providing legal aid to individuals involved in international criminal proceedings. On the other hand, Pakistani law recognizes the importance of legal aid as well, albeit with its own unique features and challenges. This article examines the constitutional provisions and statutory laws in Pakistan that guarantee the right to legal representation for individuals, particularly those who are economically disadvantaged. By understanding the similarities and dissimilarities between these systems, policymakers, legal practitioners, and scholars can identify potential areas for improvement and enhance access to justice for individuals, irrespective of their economic or social status. This article concludes that international law recognizes legal aid as a universal right and various international treaties make it mandatory for states (i.e., Pakistan) to ensure access to legal aid for those who cannot afford it.

Pengaturan dan Penerapan Prinsip Teritorial dalam Perlindungan Indikasi Geografis Indonesia (Dalam Perspektif Hukum Internasional dan Nasional)

The principle of territoriality is one of the fundamental principles in Intellectual Property Rights (IPR) which is regulated in Trade Related Aspects of Intellectual Property Rights (TRIPS). This principle gives authority to the state to regulate IPR according to the circumstances and needs of the state. This territorial principle allows a country to design intellectual property laws in a way that is consistent with its goals. This study uses a normative juridical method with a statutory and comparative law approach. Regulations regarding territorial principles in the regulation of Geographical Indications (GI) are contained in Article 22 (1) TRIPs, where TRIPs are the basis for the rules (minimum standards) for regulating GI protection. In addition, GI protection is contained in the Lisbon Agreement for the Protection of Appeals of Origin and their International Registration 1958 and in the Madrid Protocol. Indonesia regulates GI protection in Law Number 20 of 2016 concerning Trademarks and Geographical Indications and in Government Regulation Number 12 of 2019 concerning Geographical Indications. Indonesia must regulate GI well because it has great potential to increase people's income. Apart from that, Indonesia must also register Indonesian GIs in the international registration room, so that there is no misuse in their use.