Mimbar Hukum, Volume 21, Number 1, February 2009 | Perpustakaan Universitas Bhayangakara Jakarta Raya
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Informasi Detil
| Volume |
Vol. 21, No. 1, February 2009
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|---|---|
| Penerbit | Fakultas Hukum Universis Gadjah Mada : Yogyakarta., 2009 |
| ISSN |
0852-100X
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| Subyek |
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Artikel Jurnal
| Judul | Abstract | Halaman |
|---|---|---|
| Environmental rights protection for victims to environmental damages (case study: Indonesia forests burn-downs of 1998 and Sidoarjo-Lapindo Brantas mud eruption of 2006) | It is clear that environmental rights are among The most important basic rights in human’s life. Although embedded in more than several international treaties, there is yet an independent treary which focusing solely an environmental rights. This is very unfortunate to developing countries such as Indonesia, whose most environmental problems are caused by human and/or development activities and with victim improtected of their environmemal rights. This research unfolds two case studies in Indonesia regarding to be protection of three basic rights: the right to be free from hunger; the right to security and the right to health. In principle these case studies pictures enviromnental rights protection in Indonesia, which is already protected on the legal basis, but lack of implementation in the field. | 1-17 |
| Impact of water pollution on environmental health from an environmental law perspective (case study: Code river within sub-district of Wirogunan, district of Mergangsan, and sub-district of Prawirodir | This research is aimed to know the contribution government and societies in Yogyakarta for maintaining the water pollution on Code River. Code River is a river in Yogyakarta which has crowded area on its river flow region. The research location is in Code’s river flow region, especially in Kelurahan Prawirodirjan Kecamatan Gondomanan dan Kelurahan Wirogunan Kecamatan Mergangsan Yogyakarta.Data in this research were obtained through field research and library research. The field research was carried out by using interview guidance and sample waste data testing from Balai Besar Teknik Lingkungan (BBTKL) Yogyakarta, whereas the library research was done by documentary study by collecting and analyzing selected laws and regulation which were relevant to the research.The result showed that the environmental data to maintain environment health and social condition in the field research has not been served. Beside that, the result of laboratory testing BBTKL showed that water condition on field research has contained pollutant. However, the government and societies just give less contribution to decrease the effect of water pollution on Code River. In this case, the contribution of laws and regulation has been needed to decrease the water pollution. | 18-28 |
| The urgency of ratyfing the 2001 Stockholm Convention on persistent organic pollutans for Indonesia | Pollution has become one of the most significant problems in the environmental issues. Aside the effect of the pollution, another substantial factor of pollution is the character of the pollutant. Among several pollutant substances in the world, there are twelve main persistent organic pollutants, which are still in large and freely mobilized in our environment. On November 2001, the United Nations Environmental Program has issued a convention about persistent organic pollutants. So many enthusiasms from the states about this progress, as well as Indonesia did. However, after more than seven years, Indonesia has not submitted the ratification paper of this convention. This paper aims to analyze and elaborate the issues behind this convention and the urgency of submitting the ratification of Indonesian government. | 29-39 |
| The existence of polluter pays principle in Indonesia environmental law | Polluter- Pays Principle (PPP) was initially known as economic instrument to maintain the balance between natural resources exploitation and economic activities. In its further development, PPP was defined as basic instrument of legal responsibility. In Indonesian legal perspective, PPP was not arranged adequately, either in its basic level of law arrangement or in its definition subsisted in court’s verdicts, including its clear existence in legal system. However, the principle has become reference in practical level, especially in the settlement of environmental pollution cases. For Indonesia, the position of this principle was supposed to be defined in accordance with its purposes of formulation by applying economic instruments, such as charge for guarantee fund, environmental tax, as well as charge for environmental service. In legal perspective, the principle was not relevant to be used as the basis for legal responsibility, including cannot be understood as an excuse for polluting. | 40-51 |
| The rearrangement of Baluwarti lands as cultural-preserved areas with a Javanese legal culture basis | The aim of this research is to describe the regulation of Baluwarti land. As agreement between Surakarta government, Baluwarti society and keraton Surakarta relatives about the meaning of keraton Surakarta and the property of Baluwarti land. This research uses quality method with socio-legal study approach. The data consist if primary and secondary sort. The sources of the first data are keraton Surakarta relatives, the apparatus of Surakarta government and Baluwarti society, while the second are public and personeal data and the legally data. There were two ways to teke the primary data, namely observation and interview. Secondary had been gathered through library study, analysis of document, archives, primary and secondary legal data. Trianggulation method had been used to check the validity of data. The analysist consist of three ways used in the same moment, namely data reduction, data serve and verification. The interpretation had been used to understand the meaning of the information and the relation among it. The composition of the meaning relation depents on the thougt frame of the informant. As result of the discussion of this research is the harmonious opinion between Surakarta gavernment, Baluwarti society and keraton Surakarta reltives thet keraton Surakarta is the adat institution. It is also the guardian of Javanese culture and the tourism destinatiun. Each of them uses legal culture of Javanese as their frame of opinion. The opinion of part of keraton Surakarta relatives that keraton Surakarta is the governance center can’t be received. Such opinion isn’t compatable with the aspiration of Surakarta government and Baluwarti society. It is also able to cause the social violetry. There is a different opinion between keraton Surakarta relatives, government of Surakarta and Baluwarti society about the meaning of property of Baluwarti land. According to Baluwarti society and Surakarta government, Baluwarti land is the state property. On the other side, as for keraton Surakarta relatives, Baluwarti land is Sinuhun property delegated to Parentah Keraton Surakarta. But actually the three sides have the same interest. All of them hope that the existention of keraton Surakarta can give them economic constribution. The same interest is the foudation of the regulation of Baluwarti society as the cultural guardian. The source of Baluwarti land is the nation property, while Surakarta government regulates the relation between Sri Susuhunan and keraton relatives, person and corporation with Baluwarti land. The owner of Baluwarti property is Sri Susuhunan as the chief of keraton Surakarta relatives. | 52-66 |
| Legal protection on suspect rights through pretrials in Gorontalo | Building justice through judicature institution always contends with consequence which sacrifices the suspected as being object of investigation. There is a guarantee called “presumption of innocence”, but the guarantee is not representative enough, there must be still a guarantee that the position of the suspected is quiet strong, not only as object, but also, as possible as being subject, and law officers effort to find fair decisions. With the existing of prejudge, in hope, Criminal affairs will run well which is suitable with the current regulation. Arresting, jailing etc can not be accomplished at haphazard. The whole is to manifest law protection of human rights in order not to be violated. Besides it, the existence of prejudge in hope, is able to help and gives the protection of law to the basic rights of the accused as an effort to protect the one from forced trial by investigators and public prosecutors. Therefore, automatically the rights of the accused can also be protected. The execution of prejudge as managed within KUH Pidana is influenced by several factors such as: first, prejudge as the law protection of human rights. Second: prejudge as the instrument to control the investigator and prosecutor, Besides the factor as explained above, there are also barriers in the execution of prejudge. The hindering factor of prejudge execution consists, such as; First the prejudge practice is still rare. second, the basic difference of judge’s decision of sentence, third, limited time for inspection of prejudge affairs. | 67-74 |
| Punitive attitude based on the objectives of criminal | Punitive attitudes of law enforcers in some criminal cases seem not to benefit the convict, as it does not support the main objective of the criminal justice system. This is because of the absence of binding direction which guides judges in making judgments. In order to benefit the convict, criminal law should formulate a binding direction as well as individualizing punishment which bind all the criminal court. Moreover, there should also be a common understanding among law enforcers that punitive attitude should be balanced with curing attitude. Therefore, physical, substantial and cultural synchronization are needed. The physical synchronization can be conducted through synergy among law enforcers as part of the criminal justice system. The substantial synchronization can be realized through the availability of common understanding among law enforces. | 75-86 |
| Anti-avoidance rules in Indonesia after the fourth amandement to the income tax act | The fourth amendment to the Indonesian Income Tax Act (UU PPh) has inserted three new provisions encountering three newly-identified tax avoidance schemes. However, the previous regulations in respect of thin capitalization, CFC and interest stripping were not carefully be given attention and be made in conformity with their newest developments. As an illustration, the term “company” has never been defined in the Act. Instead, the Act introduces the same term in the conduit company rules. Another example involves the CFC rule which does not put additional provisions to define “control”. Another interesting development is the regulation of the International-hiring out of labor which instead of making it in conformity with the OECD MC, the rule empowers the country to increase the taxable income of an employee in respect of employment excercised abroad. This article attempts to demonstrate how the Indonesian anti-avoidance rules work out and prove how taxpayers may well, ironically, abuse those rules. | 87-103 |
| Divorce by a non muslim husband in religious court | Religious Courts were established with mandate to serve Indonesia Moslem in case settlement based on Islamic Law. The Religious Courts are Courts of limited or special jurisdiction and party (as specified in their Statutes). They differ from the General Courts which have a general jurisdiction. The jurisdiction are limited on marriage, inheritance, will (wasiat), gift (hibah), waqf (wakaf), tithe (zakat), infaq, alms (shadaqah) and Shariah Economic (Act Number 3 of 2006 on Amendment of Act Number 7 of 1989 on Religious Court ). The courts take exclusive jurisdiction in marriage affairs concerning a Moslem husband and wife relating to marriage, revocation, reconciliation and divorce where the intervention of a religious court judge is necessary. Practically, the Courts jurisdiction extends to same range in divorce matters but the party in the case is non-Moslem. The jurisdiction is based on Islamic Personality principle; first, she or he was Moslem when marriage was conducted and second, the contract based on Islamic Law. | 104-114 |
| Legal politics of granting the right to cultivate after the enacment of invesment law No. 25 of 2007 and its impact to the farmers | Application policy of Investment Act (Undang-Undang Penanaman Modal/UUPM) Number 25 of 2007 about Capital investment can bring negative implication to fate of farmer. UUPM hardly clearly gives amenity to investor to obtain farm and tends to give the big trust to investor to build the economic of Indonesia. The amenitys that is given to investor can be misused if there is not followed by readiness of the law structure with having enough ability to implement the substance of UUPM causing can give the negative implication to fate of farmer. Until now, the implementation of vesting policy of HGU still has many harvesting problem between entrepreneurs with public that occupying on the area around of HGU. The application of policy that applying of vesting of HGU after implementing of UUPM has give ever greater gain to entrepreneur because the duration of domination of extendable HGU at the first time. The Government needs to take the normatif of rule that remain to the farmer to gets justice and prosperity while investor still can inculcate the legal capital and has the business in Indonesia. In this case, the law structure prepared to beginning of UUPM must really brood in order not to invite abuse to vesting of HGU to investor. This thing is enabled by HGU that can be transferred or transferred to other party according to PP Nomor 40 Tahun 1996, while UUPM only arrange the duration of vesting of HGU. Visible capital investment act as indication that there is no motivation for economics independence of public, the policy takers doesn’t believe the Indonesian farmer can build plantation, agriculture and fishery or even is improved to become company. This act exactly trusts in investor that is most accurate cluster in giving the huge of land, whereas Indonesian farmer becomes cheap labour only. This is the main characteristic of colonial agrarian law that reanimated on behalf of INVESTMENT. Our farmer is not really poor; however they impoverished by regulation and legislation which nonalignment to Indonesian public. | 115-123 |
| Pacta sunt servanda in international treaty | The pacta sunt servanda is one of universally recognized legal principles by which its existence has been known. Its mere relevance is related to treaty since this principle determines that agreed stipulations concluded among parties become legally binding and cause rights and duties to be fulfilled in good faith manner. As it is recognized and accepted among parties to the treaty, it becomes integral part of the law of the treaty particularly of the law of international treaty. The preamble and Article 26 of the 1969 Vienna Convention on the Law of Treaty and the 1986 Vienna Convention reiterate its legal existence as the guiding principle to make and to implement international treaty. In the Indonesian legal system, the existence of that principle inspires the formation of Article 1338 of Indonesian Civil Code and of Article 4 (1) the Law Number 24 of 2000. It can be concluded firmly that the existence of the pacta sunt servanda has formed and evolved as a legal system including the international law legal system today. | 124-133 |
| The inheritance pattern of fisherment in Pandangan Wetan, Kagran, Rembang | The aim of this research is to find out empirical data about inheritance pattern of fisherman in Pandangan Wetan, Kragan, Rembang village. This way, the development of inheritance problem among the Javanish society become to be known. Data collection was carried out by library and field research. The library research has been done as the guidance for the field research and analysis intensified. Subjects of the research are determined by purposive sampling and field data are collected by interview method. There are 18 respondents (ships owner and labor) and 5 key informants (head village, village secretary, TPI leader, youth leader and religious figure) in this research. The data from library and field research were analysed qualitatively. The result of this research indicates that the inheritance pattern of fisherman performed by before and after a person who leaves an inheritance death. There are differencies on the heritage distribution pattern among male and female children on the rich and the poor fisherman. The rich fisherman who has numerous property will give their heritage to male and female children but the poor fisherman tend to give their heritage to female child priority. | 134-141 |
| The activities of foundation after the enactment of law No. 16 year 2001 concerning foundation in Yogyakarta | This research is meant to examine the foundations activities, especially the ones concerning with the implementation of the adjustment of the foundation’s statutes and their constraints as well as their entries which are in accordance with the aims and purposes of the foundations as written in the statutes. The answers of the problems were taken from the library and field research. The library research was done by perusing primary, secondary, and tertiary law materials with documents as their instruments. The field research was conducted by distributing questionnaire to the staff of the foundations and interviewing Notaries as the resource persons. After the research was done and conclusion was taken, it was founded that; the adjustment of the statutes of foundations has only been implemented by 27% of the respondents. The constraints of the adjustments of statutes of the foundations include the internal constraints, covering: the poor understanding upon the statutes, financial matters, the reluctance of the committee to the adjustments they should make, and the external constraints, which include the incomplete regulations, and the poor support from the involved parties. The foundations which establish Universities and Hospitals, or which hold Art Performing do not comply with Article 3 about foundation; whereas Foundations which run enterprises as indicated by Chapter 3 jo. Chapter 8 of the statutes of the foundations does not exceed 33.33 %. | 142-151 |