Showing papers in "Yuridika in 2008"

Rebuilding the Judiciary in Indonesia : The Special Courts Strategy

Abstract: One reform strategy to improve judicial performance has been to establish special courts. While hailed by some as an effective tool, others have pointed at the dangers to ‘sidestep’ the general judiciary in this manner. Indonesia provides an interesting case to examine these claims as in probably no other country have those seeking to reform the judiciary invested so much in special courts. The present paper evaluates the performance of some of Indonesia’s special courts. Its main focus is the administrative courts, as the oldest and most ‘trialled’ of the list. It identifies to what extent the special court nature has been relevant to their performance and on this basis formulates four theses. These are then tested from the experiences with two other special courts: the tax courts and the commercial courts. In the conclusion these findings are summarily related to data of the other special courts. The analysis will demonstrate that it depends on the conditions under which special courts evolve whether they can actually contribute in a positive manner to judicial performance. On the one hand serious problems with access and jurisdiction are associated with some of them, but on the other these courts perform relatively well on political independence and expertise. Carefully considered and introduced, specialisation of courts may be beneficial indeed.

Pengadaan tanah bagi pelaksanaan pembangunan untuk kepentingan umum

Abstract: Pengadaan tanah menurut Peraturan Presiden No. 65 Tahun 2006 juncto Peraturan Presiden No. 36 Tahun 2005 memiliki dua elemen penting, yaitu pengaturan dan pengertian tentang kepentingan umum dan persoalan pemberian ganti rugi kepada pemegang hak atas tanah. Kepentingan umum menurut ketentuan ini dilakukan dengan penyusunan daftar kegiatan (list provision) melalui pendekatan yang sempit. Bentuk dan besar ganti rugi dilakukan secara musyawarah dengan mendasarkan pada hasil penilaian dari Lembaga/Tim Penilai Harga Tanah.

Karakteristik ilmu hukum

Abstract: Jurisprudence is a sui generis discipline. The growth of positivism leads to the application of natural science method to social studies, which relied upon empirical observations. This brought about the establishment of legal positivism, which delimits the study of law to the study of observable phenomenon in the form of positive law. As positive law imposed by authority, this law neglects every unobservable aspect of the law, such as justice, ethics, etc. The increase of the study of social perspective on law in the 1970s is misperceived as the shift of jurisprudence to social science realm. The study of law, then, is patterned on social study. Consequently, law deals only with observable phenomenon. This, certainly, mislead the study of law. Jurisprudence is a prescriptive as well as applied science. Social method, consequently, is inapplicable to jurisprudence.

Konsep dan pengaturan hukum kejahatan terhadap kemanusiaan

Abstract: A crime against humanity is a part of the most serious crimes concerned by international community. The law against this crime is widely accepted, because it is categorized as ‘hostis humanis generis’. Nevertheless, this concept and international laws of crime against humanity are defined and adopted differently by many countries, including under Indonesian laws. This paper analizes comparatively the concept and provisions which are based on international statutes, jurisprudence in ICTY and ICTR and Indonesian Human Rights Court Law, especially the provision of “other inhumane acts”. It also examines whether the different concepts would make legal concequences in implementing progressively its law enforcement in Indonesia.

Hukum adat dan problematika hukum indonesia

Abstract: Indonesian Legal Order has been found since Proclamation of Independence 17 August 1945. But Indonesian legal development mainly on providing substantive justice for common people still often results in disappointment caused so many problems in it. The problematic of the Indonesian legal development is complicated that can be known by the failure of the solving efforts so many times in so long period, so it must be approached systematically that may pushes us to evaluate deeply into the Indonesian legal system that has been applied, that is Civil Law System. Adat law, as the indigenous law system of Indonesian people, has extremely different characteristic with Civil Law System, and by its origin characteristic Adat Law may offers solution for the problematic of the Indonesian legal development.

Wajib bela negara dan prinsip pembedaan dalam hukum humaniter internasional (kajian pasal 30 uud 1945)

Abstract: The main provision of state defense is as provided in Article 30 UUD 1945 and is further regulated by the Act No. 20 year 1982 regarding General Provision on the Defense and Security of the Republik of Indonesia, which was amended by Act No. 3 year 2002 regarding State Defense. The concept of peoples participation in state defense and security system (sishankamrata) as stated in the previous Act was replaced by state defense system by the later Act. In order to implement the new Act, there has been an effort by government to draft a Bill regarding Reserve Component of the State Defense. Several important issues in the Bill are including the active involvement of civilian in the activity of state defense which can only be implemented if all resource of the Indonesian National Army (TNI) have had been maximally employed. Decision to mobilize and demobilize civilian is granted by the President with approval from the Parliament. Moreover, member of the Reserve Component after being mobilized has a new status as combatant. Therefore, if the Bill regarding Reserve Component of the State Defense is approved by the Parliament and become an Act - and there is no significant modification to the provision on the status of civil citizen after being mobilized – it will be clear that all civil citizens who involve in state defense activity must then be treated as combatant.