Veritas et Justitia

CONSTITUTIONAL ADMINISTRATIVE CONSTITUTIONALISM: PERBANDINGAN KARAKTERISTIK KEKUASAAN LEGISLASI PRESIDEN DI INDONESIA DENGAN AMERIKA SERIKAT

Hadyan Iman Prasetya — Sat, 29 Jun 2024 00:00:00 +0700

Recent studies conducted by American legal historians show that constitutional interpretation in the United States (U.S.) often arises from administrative agencies, a phenomenon called administrative constitutionalism. This supports the executive branch’s constitutional interpretation power, independent from the court. Similarly, Indonesia’s Constitution grants the President legislative power. By comparing this with U.S. administrative constitutionalism, this article, written descriptively through normative approach, examines the Indonesian President’s legislative power, termed constitutional administrative constitutionalism. The findings highlight three characteristics: (1) the U.S. dichotomy between president and administration does not apply in Indonesia, (2) Indonesia’s checks and balances occur during the debates in legislation drafting phase, unlike the post-enactment review in the U.S., and (3) Indonesia’s system operates under judicial supremacy, unlike the contesting judicial supremacy-departmentalism-popular constitutionalism in the U.S.

INDONESIA'S FUTURE ACTING PRESIDENCY: MAINTAINING OR REPLACING THE NEW ORDER LEGACY

Febriansyah Ramadhan, Setyo Widagdo, Aan Eko Widiarto, Riana Susmayanti — Sat, 29 Jun 2024 00:00:00 +0700

The interim president anticipates the vacancy of the office of president and vice president; Indonesia calls it ‘pelaksana tugas kepresidenan’, which is filled by the minister of home affairs, foreign affairs, and minister of defense. This article explores the two actors (bureaucrats and legitimacy) who become interim presidents in the constitutions of the world's countries. Next, the Indonesian arrangement and accompanying problems in the 1945 Constitution will be reviewed. This article is aided by a doctrinal research method with historical, legislative, and comparative constitutional approaches. Indonesia has its peculiarities compared to the constitutions of world countries because it applies a compound position as interim President adopted from the New Order legal products (Tap MPR VII/1973) without going through a decontextualisation process, so it still applies the old features (bureaucratic actors) with compound/collegial executive positions in the new constitutional structure that seeks to purify the presidential system. In addition, there are conditions that the 1945 Constitution still cannot resolve and that cause paralysis of governance. This article offers one solution—which could alleviate two specific problems simultaneously—and that is to make the Speaker of the House of Representatives (DPR) the acting President of the future.

PRESIDEN DAN PEMBERHENTIAN HAKIM KONSTITUSI: PEMISAHAN KEKUASAAN TANPA CHECKS AND BALANCES

Titon Slamet Kurnia — Sat, 29 Jun 2024 00:00:00 +0700

On September 29, 2022, the People’s Representative Council (DPR) controversially removed Justice Aswanto and proposed Guntur Hamzah as his successor. Following the DPR’s decision, the President issued Presidential Decision Number 114/P of 2022. This process aligns with Article 24C paragraph (3) of the 1945 Constitution of the Republic of Indonesia, which states: “The Constitutional Court is comprised of nine Justices who are appointed by the President, of whom three are proposed by the Supreme Court, three by the People’s Representative Council, and three by the President.” This provision includes two clauses: the proposal clause and the appointment clause. This article discusses the President's role in implementing the appointment clause in the case of Justice Aswanto’s removal. Using a conceptual approach, it focuses on interpreting Article 24C paragraph (3) to understand that the President's role in the appointment clause embodies the principle of checks and balances. This article argues against the President’s legalistic position of implementing the appointment clause without scrutinizing the DPR’s decision. While the appointment clause does not explicitly authorize the President to refuse issuing the Presidential Decision, this norm may be inferred from our commitment to the supremacy of the constitution.

PERAN BADAN USAHA MILIK DAERAH SEBAGAI INSTRUMEN INVESTASI PEMERINTAH DAERAH: STUDI KASUS DIVESTASI SAHAM NEWMONT

Huta Disyon, Marwan Riyandi, Garnita Amalia — Sat, 29 Jun 2024 00:00:00 +0700

The investments made by Local Governments in Regional Owned Enterprises (ROEs) have not yielded satisfactory returns. One potential investment opportunity for Local Governments is participating in the divestment of foreign shareholders in mining companies. This study analyzes the role of ROEs in divesting mining company shares, including the legality of ROE establishment, the position of ROEs in mining company divestment, and their role as investment instruments for Local Governments, using PT Newmont Nusa Tenggara as a case study. Using a normative method and analyzing secondary data descriptively, the study finds that Local Governments must ensure the administrative process of establishing ROEs complies with applicable laws and regulations. ROEs can partner with investors to address funding difficulties in foreign divestment transactions. Additionally, the priority position of Local Governments in divesting foreign shares in mining companies should provide a strong bargaining position in negotiating the establishment of ROEs and subsidiaries used as vehicles in these transactions.

BRANCH PROFIT OF UPSTREAM OIL AND GAS BASED ON TAX TREATY AND PRODUCTION SHARING CONTRACT IN INDONESIA

Maria R. U. D. Tambunan — Sat, 29 Jun 2024 00:00:00 +0700

Tax treatment for a production sharing contract (PSC) is possibly different from general tax rules when calculating the amount of annual cost to be allocated by upstream oil and gas business to project their profit. On the other hand, the prevailing tax law applied in a particular country could either be made based on domestic tax law and a tax treaty depends on the tax subject. This article is intended to discuss tax arrangements sourced by a PSC during cost recovery regime and tax treaties in Indonesia. This study also discusses the cases brought before the Supreme Court due to the interplay of a PSC and a tax treaty during the years of 2015-2021. The research uses normative legal research with data collected through documentation studies. The contractors demanded a reduced tax rate on branch profit derived from a tax treaty as a general rule considering that they are the persons covered by the treaty. However, they must also respect production sharing as agreed in a PSC that existed before the conclusion of the tax treaty. For the future, it needs to adopt the stabilization clause to deal with the issue.

IMPLEMENTASI DESAIN PRIVASI SEBAGAI PELINDUNGAN PRIVASI ATAS DATA BIOMETRIK

Patricia Edina Sembiring, Ahmad M. Ramli, Laina Rafianti — Sat, 29 Jun 2024 00:00:00 +0700

Attention to biometric data security has become urgent for protecting user privacy. In the context of the Protection of Data Privacy (PDP) Law, biometric data are classified as specific data, requiring extra protection due to their unique, non-exchangeable characteristics. This study uses a normative approach, analyzing legislation and legal comparisons through regional and international regulations, to examine two issues: the position of biometric data as specific data under the Electronic Information and Transactions Law and PDP Law, and the technical solutions through privacy by design to protect biometric data. The research findings are: (1) Biometric data are correlated with privacy and personal rights, classifying them as specific data. Their use for public and private interests raises the potential for privacy violations. (2) Technical solutions through privacy by design can begin with implementing consent at the registration stage by personal data controllers, ensuring the processing of biometric data achieves specific purposes.

MISKLASIFIKASI HUBUNGAN KERJA PENGEMUDI OJEK ONLINE (PLATFORM WORKER) DI INDONESIA

Williams Oey — Sat, 29 Jun 2024 00:00:00 +0700

Technological developments through digital platforms have created a new work ecosystem, allowing platform workers, such as online motorcycle drivers in Indonesia, to affiliate with various companies to provide transportation services. However, despite these advances, online riders have not received adequate rights protection as ‘workers’ because their status is limited to ‘partners’ (independent contractors) under the Partnership Agreement they sign. This article uses a normative approach to examine how legal developments in Indonesia can classify and protect online riders as workers under employment laws. A comparative approach is employed, referencing policies in Europe, particularly Spain and the European Union, which have been more progressive in interpreting employment relationships for platform workers. The research finds that legal reforms in Indonesia still inadequately protect online riders’ labor rights due to narrow interpretations of employment relationships that fail to keep pace with current developments.

PERMASALAHAN HUKUM PADA KEGIATAN KOPERASI SIMPAN PINJAM DI INDONESIA

Veri Antoni, Azka Farrell Razaga — Sat, 29 Jun 2024 00:00:00 +0700

Cooperatives, as key economic actors alongside State/Regional Owned Enterprises and the private sector, have recently come under scrutiny, particularly Savings and Loans Cooperatives (KSPs). Many KSPs have experienced payment failures, leading to legal issues. The widespread defaults in KSPs stem from regulatory gaps; while they engage in activities similar to banks, they are not fully regulated as such. One significant issue is the ineffective supervision of KSPs, many of which receive funds from external investors who are not members. Law on Financial Sector Development and Strengthening has acknowledged the existence of cooperatives that serve non-members (open loop). The Minister of Cooperatives Regulation 8/2003 has addressed past issues and incorporated best practices for banking activities, such as capping deposit and loan interest rates, setting maximum lending limits, business restructuring, and enforcing supervision and reporting standards. However, these regulations do not include provisions for a deposit guarantee institution for cooperatives, which is essential for mitigating the adverse effects of defaults on customers and cooperative members.

KELEMBAGAAN DAN KEWENANGAN PENGADILAN NIAGA TENTANG UPAYA HUKUM KEBERATAN TERHADAP PUTUSAN KOMISI PENGAWAS PERSAINGAN USAHA

Asep Iwan Iriawan — Sat, 29 Jun 2024 00:00:00 +0700

Article 24A (5) of the 1945 Constitution regulates the composition, position, membership, and procedural law of the Supreme Court and subordinate judicial bodies. Initially limited to bankruptcy, postponement of debt payment obligations (PKPU), and commercial matters by Law Number 37 of 2004, the jurisdiction of the Commercial Court has expanded through other laws. This expansion raises two key issues: (1) The need for legal remedies for objections to decisions of the Competition Supervisory Commission (KPPU), and (2) The competence of the Commercial Court to address these objections. This research uses a normative juridical method, suggesting that legal remedies for objections to KPPU decisions should be regulated in a separate law, addressing decisions from institutions beyond the judiciary’s jurisdiction. The procedural aspects for contesting KPPU decisions, outlined in Article 45 of the Omnibus Law Number 6 of 2023, should first be determined within the competence of the Commercial Court as regulated by law. The current institutional arrangements and authority of the Commercial Court, as outlined in the Bankruptcy and PKPU Laws and laws on Intellectual Property Rights, should be revised through a dedicated Law on Commercial Courts. This law should define the court's structure, powers, procedural rules, and set time limits and sanctions for case resolution at both the Commercial Court and the Supreme Court.

THE EUROPEAN UNION’S AVIATION SECURITY POLICY EVOLUTION AND ITS IMPLICATIONS TO INDONESIA

Stephanie Putri Hartono — Sat, 29 Jun 2024 00:00:00 +0700

Advances in aviation transportation have increased threats to security, prompting the European Union (EU) to take decisive actions. This research examines the evolution of the EU’s aviation security laws and their implications for Indonesia. Using a normative legal research approach, the study finds that EU aviation security measures have been significantly influenced by external and internal factors. Key developments include the integration of aviation security post-9/11 with Regulation (EC) No. 2320/2002, its replacement by Regulation (EC) No. 300/2008, the near-ban on liquids after the 2006 Trans-Atlantis liquid bomb plot, the installation of security scanners following the 2009 underwear bomb plot, and the ACC3 system post-2010 Yemen incident that revoked Regulation (UE) No. 185/2010. Cyber threats are also a growing concern. This research is important as these EU measures impact Indonesia’s national aviation security standards.