Veritas et Justitia

KEBIJAKAN FORMULATIF TINDAK PIDANA DI BIDANG PERLINDUNGAN MANGROVE BERBASIS KONSERVASI EKOSISTEM PESISIR

Ayu Izza Elvany — Sun, 29 Dec 2024 00:00:00 +0700

Indonesia boasts extensive mangrove forests spanning over three million hectares, yet these are steadily declining due to harmful activities such as deforestation and land degradation. As a shoreside ecosystem, mangroves in seaside zones are also threatened by destructive management practices in coastal areas and on islands. This research analyzes Indonesia’s current criminal (formulative) policy regarding offences against mangrove conservation as part of offshore ecosystems and proposes a sustainable, approach-based formulative policy to promote mangrove sustainability in Indonesia’s coastal zones. This is doctrinal legal research, wherein the proposed legal issues are analyzed using both statutory and conceptual approaches. The findings indicate that the formulative policy regarding offences against mangrove conservation, specifically Article 73 paragraph (1) letter b and paragraph (2) of Law Number 1 of 2014 concerning Amendments to Law Number 27 of 2007 on Management of Coastal Areas and Small Islands, does not align with the sustainability principle that underpins coastal ecosystem conservation, including mangroves. The study highlights the need to amend the policy by explicitly incorporating corporate criminal liability and reconstructing the sentencing framework based on restorative justice and deterrence theory. These changes aim to strengthen criminal law as a last resort (‘ultimum remedium’) for protecting mangrove sustainability and conserving coastal ecosystems.

REACHING SDG TARGET 14.4 BY ESTABLISHING PROVISIONAL ARRANGEMENTS FOR LAW ENFORCEMENT OPERATION

Adrianus Adityo Vito Ramon — Sun, 29 Dec 2024 00:00:00 +0700

The research article argues that establishing provisional arrangements for law enforcement operations in overlapping maritime claims areas could be a viable option for claimant states to suppress illegal, unreported, and unregulated fishing (IUUF), which hinders progress toward achieving Sustainable Development Goal (SDG) Target 14.4. This target emphasizes sustainable fishing practices, marine life protection, and effective fish population management, aiming to prevent overfishing, reduce harmful fishing techniques, and ensure the sustainability of fish stocks. Under the 1982 UN Convention on the Law of the Sea, provisional arrangements for law enforcement operations can provide a practical framework for claimant states to conduct joint efforts, pending and without prejudice to the final resolution of overlapping maritime claims. To substantiate this argument, the article employs a juridical normative legal research method to: analyze the connection between SDG Target 14.4 and IUUF, which may impede progress toward the goal; examine the challenges of enforcing laws in overlapping maritime claims areas, including the factors contributing to IUUF in such contexts; and assess the potential impact of provisional arrangements for law enforcement on suppressing IUUF and advancing the achievement of SDG Target 14.4. The study highlights that these arrangements could serve as a collaborative interim solution, promoting sustainable development and marine ecosystem conservation while territorial disputes remain unresolved.

GOOD FAITH AS LEGAL BENCHMARK FOR THE ALLOCATION OF LOSSES BY MUTUAL COMPANY

Danu Kristian Ira Widodo — Sun, 29 Dec 2024 00:00:00 +0700

Allocation of losses is a special scheme that can only be applied to mutual companies, legal entities that position policyholders as both insured parties and owners. The problem with the allocation of losses arises because, in its determination, policyholders are required to fulfill mutual obligations in the fiduciary realm as owners. On the other hand, the allocation of losses has implications for reducing the policyholder’s right to receive claims as agreed. This paper is a legal research study employing a statutory approach and a conceptual approach. The results of this study indicate that, for the allocation of losses to have legitimacy, it must align with fiduciary principles and be fair based on the terms of insurance agreements. The legal findings suggest that the principle of utmost good faith should be expanded in mutual companies to serve as an instrument of checks and balances by policyholders over management and aspects related to the fulfillment of agreements.

OTORITAS AHLI WARIS DENGAN MASALAH KEJIWAAN TERHADAP HARTA WARISAN DALAM PERSPEKTIF HUKUM ISLAM

Aqqhila Felia Putri, Dewi Sukma Kristianti — Sun, 29 Dec 2024 00:00:00 +0700

This study examines the obligations and authority of heirs with psychiatric conditions in managing their inheritance from the perspective of Islamic inheritance law. It addresses the issue of heirs with psychiatric problems, who are often assumed capable of fulfilling their obligations and managing their inheritance. Such heirs are frequently equated with children or individuals with severe mental illness, who typically rely on family assistance. The study explores two main legal issues: (1) the applicability of heirs' obligations under the Compilation of Islamic Laws (KHI) to those with psychiatric conditions, and (2) their authority to manage their inherited property under Islamic inheritance principles. Using socio-legal research methods—including statutory, conceptual, and comparative approaches—the study finds that heirs with psychiatric conditions can bear obligations under KHI as they are considered ahliyah al-ada (legally capable). Their obligations primarily pertain to the transfer of inheritance, which they can perform. Regarding the management of their inheritance, such authority is granted if they can make rational decisions, particularly in cases of episodic or relapsing psychiatric disorders with non-continuous symptoms. However, in cases of permanent, continuous, and incurable mental disorders, these heirs are placed under the oversight of a supported decision-making system.

PENDEKATAN FAVOR DEFENSIONIS DALAM MEREALISASIKAN HAK TERDAKWA UNTUK MENGHADIRKAN SAKSI ATAU AHLI

Erwin Susilo, Muhammad Rafi — Sun, 29 Dec 2024 00:00:00 +0700

According to Article 66 of the Indonesian Criminal Procedure Code, public prosecutors are authorized to summon witnesses or experts to strengthen their case against a defendant. In contrast, the defendant is under no obligation to do the same but retains the right to present witnesses or experts in their defense (Article 65). However, challenges arise when defendants must summon witnesses without the backing of pro justitia status, complicating the legitimacy of such summonses. Employing a normative legal approach, it analyzes relevant laws, doctrines, norms, and practices to address the legal inadequacies surrounding the defendant’s right to present exculpatory witnesses or experts, utilizing the Favor Defensionis (FD) doctrine to address these challenges. Key findings include the following: 1) witnesses and experts play a vital role in ensuring verdicts are based on substantive truth, thereby affirming the defendant’s right to present a defense in line with equality of arms and due process principle; 2) ambiguities regarding the pro justitia legitimacy of defendants’ summonses create hesitation among witnesses or experts, impacting their willingness to appear in court; and 3) the FD doctrine supports legal interpretations that favor the defendant to maintain judicial balance. Under this doctrine, public prosecutors should summon witnesses or experts at the request of the defendant or the judge, with judges authorized to order such actions. This approach enables judges’ active judicial participation while preserving defendant’s right to independently call witnesses or experts to support their defense.

ALGORITMA DALAM PRAKTIK PENEMUAN HUKUM MODERN

Rasamala Aritonang — Sun, 29 Dec 2024 00:00:00 +0700

A defining characteristic of modern society is its reliance on general rules and regulations that derive legitimacy from scientific methods and findings, instead of customs or tradition. These rules are not typically enacted by individuals such as kings or priests with divine or prescriptive authority but are instead guided by rational and impersonal principles developed by "experts." Consequently, the modernization of law has involved leveraging scientific and technological advancements, such as the use of algorithms, to develop and improve legal systems. The evolution of legal systems is closely linked to the lawmaking process, often shaped by various legal professionals, particularly judges. This research explores the application of computational algorithms in the lawmaking process, focusing on their accountability and practical implementation. Additionally, it investigates whether legal decisions produced by algorithms can be rationally accepted as embodying "justice" when applied in judicial verdicts. This study employs a normative legal research methodology with an interdisciplinary doctrinal approach to address these questions.

IMPLEMENTATION OF THE MONTREAL CONVENTION IN INDONESIA’S AND AUSTRALIA’S AIR TRANSPORT LAWS ON CARRIER’S LIABILITY

Hilda Yunita Sabrie — Sun, 29 Dec 2024 00:00:00 +0700

The Montreal Convention of 1999 establishes the legal responsibilities of carriers on international flights and has been ratified by numerous countries, including Indonesia and Australia. However, unlike Australia, Indonesia has yet to update its laws and regulations to align with the Convention’s provisions on carrier liability. This legislative gap may result in significant losses for air transportation service users who experience damages from aircraft accidents. This research examines the extent to which the liability provisions of the Montreal Convention have been incorporated into the national legal frameworks of Indonesia and Australia. The analysis employs three methodological approaches: statutory analysis, conceptual examination, and comparative study. The findings highlight the need for Indonesia to amend its regulations on carriers’ limited liability to comply with the standards set by the Montreal Convention, considering Australia’s best practices in its legal framework.

KAJIAN TERHADAP TUJUAN FILOSOFIS DAN REALITAS LEMBAGA NEGARA INDEPENDEN DI INDONESIA

Muhammad Helmi Fahrozi — Sun, 29 Dec 2024 00:00:00 +0700

The establishment of independent state agencies in Indonesia represents efforts to reform and restructure the government in accordance with the mandates of constitutional amendments. These institutions are envisioned to embody the ideals of reform, with high expectations placed on their independence. However, in practice, independent state institutions often face challenges, including issues with performance and accountability, raising fundamental questions about their primary purpose and role within Indonesia's constitutional framework. This study seeks to examine the objectives behind the formation of independent state institutions, their implementation, and their contribution to the constitutional system in Indonesia. Using a normative juridical method with legislative and historical approaches, the research highlights the philosophical values underpinning these institutions. The findings emphasize that their primary purpose is to act as instruments for advancing democracy. However, this role must align with principles of accountability and transparency to the public. Without these principles, independent state institutions risk becoming dependent on other state powers, as observed in cases involving institutions like the Corruption Eradication Commission/KPK. Moreover, persistent challenges, such as legal product controversies involving the General Election Commission/KPU and Indonesian Financial Services Authority/OJK, underscore the need for improved governance and openness to fulfill their intended role effectively.

PELANGGARAN KODE ETIK OLEH HAKIM MAHKAMAH KONSTITUSI SEBAGAI PERBUATAN MELAWAN HUKUM BERUPA NEPOTISME

Alfret — Sun, 29 Dec 2024 00:00:00 +0700

A code of ethics is a set of written regulations binding members of certain professions, including state officials and judges. For ethical violations by the Constitutional Court judges in Indonesia, an ethics tribunal known as the Honorary Council of the Constitutional Court (MKMK) is authorized to determine whether a breach of the code of ethics has occurred. This study examines whether ethical violations committed by judges as state officials, as determined by the MKMK, can also be prosecuted as unlawful acts, specifically nepotism. Using a normative juridical research method, this study analyzes positive law regarding nepotism as outlined in Law Number 28 of 1999 concerning State Organizer Who is Clean and Free from Corruption, Collusion, and Nepotism, and employs a case study approach, focusing on ethical violations by the Chief Justice of the Constitutional Court, Anwar Usman, as documented in MKMK Decision Number 02/MKMK/L/11/2023. The findings reveal that ethical violations by state officials, such as Constitutional Court judges, may be classified as unlawful acts, including nepotism, provided the ethical violation is substantiated by a formal decision from the ethics tribunal confirming the breach.

ANALISIS SYARAT ADMINISTRATIF PROSES PEWARGANEGARAAN DI INDONESIA DALAM PERSPEKTIF PELAYANAN PUBLIK

Virga Dwi Efendi, Muhammad Fathur Rizqi — Sun, 29 Dec 2024 00:00:00 +0700

Indonesia’s citizenship system offers three distinct pathways for applicants, each with unique administrative processes. These variations impact the agencies involved, the associated costs, and the implementation of citizenship procedures. This research aims to examine the differences in administrative requirements within Indonesia’s citizenship framework from a public policy perspective, as outlined in Law Number 25 of 2009 concerning Public Services. The analysis employs a juridical-normative approach to explain the administrative prerequisites for obtaining Indonesian citizenship. The findings highlight the need for transformative measures under Law Number 12 of 2006 concerning Citizenship, particularly by enhancing coordination among ministries and agencies to deliver more effective and efficient citizenship services.