Veritas et Justitia

MEMAKNAI KEKHILAFAN HAKIM DALAM PUTUSAN NOMOR 308 K/Pdt.Sus-PHI/2018

Mustika Prabaningrum Kusumawati — Sat, 30 Dec 2023 00:00:00 +0700

These days, the industrialization era is rapidly developing and has impacted industrial relations disputes that are becoming increasingly complex and unavoidable. In the case of industrial relations disputes, difference in the decision between the first instance and the cassation level (there is no appeal for industrial relations disputes) occurs frequently. As such is the case between Siti Harini and PT Batik Danar Hadi, in which the verdicts of the first instance and cassation (Case Number: 37/Pdt.Sus-PHI/2017/PN.Smg and Case Number: 308 K/Pdt.Sus-PHI/2018) and the results of the previous first instance decisions (Case Number: 19/Pdt.Sus-PHI/2017/PN.Smg) differed from one another. In Case Number: 37/Pdt.Sus-PHI/2017/PN.Smg, Siti Harini's lawsuit was granted; in Case Number: 308K/Pdt.Sus-PHI/PN.Smg, PT Batik Danar Hadi's cassation application was granted; howeverin Case Number: 19/Pdt.Sus-PHI/2017/PN.Smg, Siti Harini's lawsuit was dismissed. If the lawsuit is filed while the case at hand is still in the middle of examination at the cassation level, it can be said that the suit is too early (premature) and consequently should be declared inadmissible (Niet Ontvankelijke Verklaard), but in fact it was granted instead. Hence, it can be concluded that there is an error in the judgment making. Conclusively, it can be stated that the implication of an error in the judgment in the first instance creates legal uncertainty and injustice in the decision.

PROSPEK PENGATURAN KOMISI KHUSUS PENYUSUN DAERAH PEMILIHAN DALAM PEMILIHAN UMUM LEGISLATIF MENURUT UNDANG-UNDANG DASAR NEGARA REPUBLIK INDONESIA TAHUN 1945

Bimo Fajar Hantoro — Sat, 30 Dec 2023 00:00:00 +0700

Electoral redistricting institution has a critical role in determining whether a proportional arrangement of electoral districts can be achieved. In Indonesia, there has been a disparity between electoral districts established by the House of Representatives (DPR) and the General Elections Commission (KPU), especially during the 2019 DPR Election. Using doctrinal and socio-legal approaches, this paper aimsto evaluate the prospect of establishing a separate boundary commission in accordance with the 1945 Constitution. The findings suggest that the establishment of a boundary commission as part of electoral management bodies is normatively feasible. However, it must meet the institutional requirements of being national, permanent, and independent. Independency has to be construed as the institution being impartial. By conferring the boundary delimitation authority to a boundary commission, not only would KPU's burden be reduced, it could also better ensure that the delimitation process adheres to the delimitation principles.

KRISIS DAN REFORMASI: EKSPROPRIASI DALAM PERJANJIAN INVESTASI BILATERAL DI NEGARA DUNIA KETIGA

Syahrul Fauzul Kabir — Sat, 30 Dec 2023 00:00:00 +0700

Since its inception, expropriation has always been controversial. In the present time, amidst the crisis and reform of bilateral investment treaties (BIT), expropriation has become increasingly complex in theory and practice. Theoretically, for instance, there is no clear boundary between expropriation that requires compensation, and the right to regulate similar to expropriation but does not require compensation. This situation becomes more complicated due to the problem of inconsistency and incoherence of arbitral awards. Therefore, it is important to understand how the concept of expropriation is understood by experts and interpreted by the arbitration tribunal; while also comparing how the global south use that concept within their BITs (in this case, India, Brazil, South Africa) to find best-practices. The method used in this research is juridical-normative and comparative. Amidst the BIT’s crisis particularly regarding expropriation, the global south has made various attempts to reform its BIT model. Exceptions forexpropriation are included within the right to regulate. Expropriation and the right to regulate indeed have similar legal requirements (i.e.: pursuance of a public interest, non-discriminatory manner, due process of law) yet different legal effect regardingthe payment of compensation as another condition for expropriation vis-à-vis the absence of compensation inthe right to regulate. In general, taking into account the respective adjustments, the global south is relatively balancing the investment interest vis-a-vis public interest by modernizing the concept of expropriation in their BITs.

MENELISIK DAMPAK PERKEBUNAN KELAPA SAWIT BAGI HUTAN ADAT, HAK ULAYAT, DAN VISI EKOLOGIS MASYARAKAT HUKUM ADAT DI KALIMANTAN BARAT

Bartolomeus Samho, Yohanes Slamet Purwadi — Sat, 30 Dec 2023 00:00:00 +0700

According to the result of a research conducted in 2016 entitled "Changes in the Mindset of Dayak Indigenous Peoples in Sanggau Regency towards Customary Forests as a Result of Palm Oil Plantations", this article aims to describe the impact of oil palm plantations on indigenous forests, customary rights, and the ecological vision of Adat communities in West Kalimantan. The research method used is a qualitative method with a phenomenological approach. The findings of this research indicate that economic benefits obtained from oil palm plantations are not proportional with the ecological and social losses resulting from the impacts, both directly and indirectly. It is also found that Adat communities living around oil palm plantations often face the threat of horizontal conflicts due to competition over cultivated land and ecological threats in the form of floods and landslides. The findings within thisis useful to strengthen the understanding of the importance and necessity of developing oil palm plantations with due regard to the local wisdom and constructive ecological vision to maintain the existence of indigenous forests as customary rights. Therefore, land clearing for oil palm plantations must pay attention to local wisdom, preserving nature so that the sustainability of ecosystems and communities is guaranteed.

KEKUASAAN MAJELIS PERMUSYAWARATAN RAKYAT: PROBLEMATIK DAN PENATAAN

A'an Efendi — Sat, 30 Dec 2023 00:00:00 +0700

People's Consultative Assembly (MPR) is an autonomous institution between the House of Representatives (DPR) and the Regional Representatives Council (DPD) but its powers are limited because it is periodic and incidental. Using doctrinal legal research with a statute and comparative approach, this research concludes, first, the problematic power of MPR from its position as an autonomous state institution that is attached to the state secretariat and budget but limited in authority because the exercise of its power is periodic and incidental, such as the power to change the Constitution or other powers which MPR may not implement within five, ten, or fifteen years and beyond during the term of office of MPR members, and secondly, how to restructure the powers of MPR by changing the position of MPR from an autonomous state institution to a joint session of the DPR and DPD by revising Article 2 paragraph (1) of the 1945 Constitution which was originally "MPR consists of members of the DPR and members of DPD" to "MPR consists of the the DPR and DPD". It is found that the repositioning of MPR from an autonomous institution to a joint session may serve to balance its periodic and incidental powers.

ANALISIS PUTUSAN PENOLAKAN PEMBATALAN MEREK “PIERRE CARDIN”

Vania Irawan, Catharina Ria Budiningsih — Sat, 30 Dec 2023 00:00:00 +0700

Well-known trademarks are crucial to be protected because they are susceptible to infringement by third parties. Disputes concerning well-known trademarks are quite prevalent in Indonesia. One case involving a well-known trademark in Indonesia that is the focus of this research is the "PIERRE CARDIN" trademark case. Therefore, this research aims to investigate and analyze the "PIERRE CARDIN" trademark case based on Decision Number 15/Pdt.Sus-Merek/2015/PN.Niaga.Jkt.Pst, Decision Number 557 K/Pdt.Sus-HKI/2015, and Decision Number 49 PK/Pdt.Sus-HKI/2018. The research methodology employed is descriptive-analytical, involving an examination of legal documents and literature in the field of law. The analysis results indicate that there were inaccuracies in the judge's decision-making. The judge ruled that there was no evidence of bad faith in an individual's registration of the "PIERRE CARDIN" trademark, even though the registered trademark was the same as another individual's name and well-known trademark. The judge also made an inaccurate decision regarding the distinctiveness of the trademark. This inaccuracy in the decision could have implications for trade and investment due to the uncertainty surrounding the enforcement of protection for famous trademarks in Indonesia.

URGENSI PENDAFTARAN PERALIHAN PEMEGANG HAK TANGGUNGAN PASCA MERGER MENJADI BANK SYARIAH INDONESIA

Eventy Velly Palawa, Hartini — Sat, 30 Dec 2023 00:00:00 +0700

The merger of three Islamic state-owned enterprises into Bank Syariah Indonesia (BSI) has impacted the Mortgage Rights execution post-merger. This is partly due to the change in the name of the bank holding the Mortgage Rights before and after the merger. This study examines the obstacles in executing post-merger Mortgage Rights of three state-owned Islamic banks into BSI and the importance of registering the transfer of Mortgage Rights holders post-merger. This research is done with a normative juridical method through document and field studies at the BSI branch in Palangka Raya, which had experienced obstructions in executing Mortgage Rights when the auction application files was returned by the State Wealth Service and Auction Office. The data is analyzed descriptively and obtained from document and field study. It is found that first, one of the obstacles in executing Mortgage Rights by BSI is the difference in the bank’s name on the Mortgage Rights certificate before and after the merger. Secondly, the registration of the transfer of Mortgage Rights is important because a merger is considered as a cause for the transfer of Mortgage Rights due to "other reasons" (Article 16 of the Mortgage Rights Law). There are priorities to be taken into account in the transfer of Mortgage Rights post-merger includes customers who are due, Non-Performing Financing customers, and customers with Write-Off status.

PEMAKNAAN DAN IMPLEMENTASI PRINSIP EX AEQUO ET BONO DALAM PENYELESAIAN SENGKETA EKONOMI SYARIAH MELALUI BASYARNAS

Khotibul Umam, Muhammad Guntur Hamonangan Nasution Nasution — Sat, 30 Dec 2023 00:00:00 +0700

The dispute resolution mechanism in BASYARNAS, an Islamic economics arbitration institution, is based on the principle of ex aequo et bonowhich still raises questions regarding its interpretation and implementation. This research aims to comprehend the meaning, limitations, and implementation of the ex aequo et bono principle in the decisions of BASYARNAS. This study uses a normative legal research method with statutory, conceptual, and case study approaches. The findings show that the interpretation of the ex aequo et bono principle correlates with Sharia principles in terms of rules and principles, prohibition of ultra petita, and arbitrator's capability. Meanwhile, the limitations of the application of ex aequo et bono are closely related to the consensual principle of the parties, primary petitum demands, Sharia principles, pacta sunt servanda, and the principle of good faith. These concepts will be taken into account in reviewing the nullity of a contract and its consequences thereafteer. In addition, the implementation, as seen in the Decision of BASYARNAS Case No. 01/Year 2010/BASYARNAS, shows that fair and propriety assessment of the panel does not solely arise from the phrase ex aequo et bono. The decision also negates the elements of the agreement and the good faith of the parties as a basis for continuing an existing contract.

GUGATAN ACTIO PAULIANA TERHADAP DIREKSI DAN KOMISARIS ATAS PENOLAKAN PENGEMBALIAN DIVIDEN INTERIM PEMEGANG SAHAM PERSEROAN TERBATAS

Chandra Yusuf — Sat, 30 Dec 2023 00:00:00 +0700

Distribution of interim dividends distributed before the end of the financial year by the Director with the approval of the Commissioner. This distribution can be made if the company's finances are in a profitable condition based on the year-end audit carried out by a Public Accountant. Companies that experience losses in their reports at the end of the year, shareholders are obliged to return interim dividends based on Law Number: 40 of 2007 concerning Limited Liability Companies. Likewise, companies experiencing bankruptcy based on Law Number: 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations. The curator in bankruptcy based on Auctio Pauliana with other claims can request the return of the company's interim dividends in the Commercial Court. However, the Curator can only ask for responsibility for the return of interim dividends to the Director and Commissioner jointly and severally. The obligation of the Directors, whose authority has been taken over by the Curator, is to sue the shareholders in the District Court based on Law Number: 40 of 2007 concerning Limited Liability Companies. The problem is, cases in District Court are complicated cases, not simple cases. This research uses normative juridical methods. In the discussion, the Director whose authority has been taken over by the Curator, if the shareholders reject the return of the interim dividend, will file a lawsuit in the District Court. However, a case at the District Court will take a long time, therefore the dividend return case must be submitted to the Commercial Court. In conclusion, to make it easier for the Director to file a lawsuit for the return of interim shareholder dividends in the Commercial Court, the Curator will provide a power of attorney and the case for the return of interim dividends will be made simple.