Tadulako Law Review

ENTRENCHING CONSTITUTIONALISM AND THE RULE OF LAW IN SOUTH SUDAN

2024-04-30T22:05:07+07:00

Abstract

Purpose of the study: The purpose of a study on entrenching constitutionalism and the rule of law in South Sudan is to examine the current state of the country's legal and political systems, identify areas of weakness and propose strategies for strengthening the country's institutions and promoting more significant adherence to constitutionalism and the rule of law for a fruitful constitutional making process.

Methodology- The study entails a content analysis that applies doctrinal legal research, which relies on document analysis of both primary sources, such as the 2011 Transitional Constitution, and secondary sources, including documentary review and relevant literature. The study identifies the obstacles to implementing these principles, such as a lack of political will, insufficient resources, ongoing conflict, liberators who ultimately become dictators and suffocating the judiciary and the legislature. The study assesses the efficacy of the measures implemented to address these challenges and their impact on promoting constitutionalism and the rule of law through comparative analysis.

Findings- The paper critically analyses the results. It draws appropriate conclusions based on the research, ultimately recommending how the South Sudanese government can better promote constitutionalism and the rule of law in South Sudan. Among the recommendations could be to promote civic education, strengthen the judiciary, and deal with the conflict's underlying causes.

Implication- The study’s implications on entrenching constitutionalism and the rule of law in South Sudan can be significant. By identifying the weaknesses in the country's legal and political systems, proposing strategies for strengthening institutions, and promoting greater adherence to constitutional principles and the rule of law, the study could help lay the groundwork for a more stable and democratic society.

Originality- This paper highlights the fundamental importance of the principle of constitutionalism and the rule of law in South Sudan.

Keywords: constitutionalism, the rule of law, judiciary, constitution, constitutional-making process.

REVIEW ON REGIONAL POLICIES IN THE LAW NUMBER 23 OF 2014 CONCERNING REGIONAL GOVERNMENT AND RELATED LAWS AND REGULATIONS

2024-01-30T09:41:04+07:00

One of the new points stipulated in Law Number 23 of 2014 Concerning Regional Government is the affirmation of regional rights to establish regional policies in carrying out government affairs that are within their jurisdiction, regional rights. In the development of this regional policy, the joint jurisdictional agreement between the central and regional governments is a fundamental thing that must be considered by regional decision-makers. Regarding the abolition of regional policies, Law Number 23 of 2014 Concerning Regional Government, regulates the cancellation of a regional policy carried out by the central government, while Law Number 30 of 2014 Concerning Government Administration, regulates the cancellation on a form of a regional policy, particularly a decision to cancel local regulations on special regions. The head is canceled by the decision-making officials, either by a higher-ranking decision-making official or by court order. The inconsistency of these two regulations, in practice across regions, can lead to legal uncertainty, especially for regional policymakers.

JUDICIAL AND CRIMINOLOGY REVIEW OF THE POST-ELECTION RIOTS IN 2019 AND THE KANJURUHAN TRAGEDY IN 2022 AS SIGNS OF MASS CRIMES FOLLOWED BY DEMONSTRATIONS.

2024-05-02T15:37:01+07:00

Indonesia is a country governed by the rule of law, which makes law the foundation of governance and also a democracy. A democratic state signifies that the highest authority lies in the hands of the people. Some cases related to periods of expressing opinions in inappropriate ways and not in accordance with existing rules have occurred. The post-election riots in 2019 and the Kanjuruhan case are examples of cases that can impact society. The steps and efforts taken by the government to address these issues also raise questions about whether they are in line with applicable regulations. Therefore, by applying a normative juridical method in this research, the aim is to understand the state's response to the tragedy of the May 22, 2019 riots and the measures taken by the state to address them, as well as to understand how crime is considered commonplace and used as justification. The crimes that have occurred in these cases have had an impact and resulted in victims, so this becomes a discussion of the steps taken by the government and whether the actions taken by the masses can be justified based on the provisions in place.

IMPLEMENTATION OF ONE DAY MINUTATION AND ONE DAY PUBLISH IN TERMS OF SIMPLE, FAST, AND LOW COST PRINCIPLES

2024-05-21T22:55:33+07:00

One of the efforts made by the Religious Courts to realize the principle of simple, fast, and low cost is to implement the One Day Minutation and One Day Publish program, which is a flagship program of the Directorate General of Religious Courts of the Supreme Court of Indonesia. This program aims to improve judicial performance and services by minimizing and publishing case decisions within one day after the case is decided, so that the justice-seeking community can immediately get a copy of the decision on the same day after the decision is read. The type of research conducted in this study is field research with a descriptive-qualitative approach. The location and object of this research involved the Malang City Religious Court, the Bangil Religious Court, and the Mojokerto Religious Court. The results of this study indicate that the one day minutation and one day publish programs have run well and are in accordance with the principles of justice, namely the principles of simple, fast, and low cost. Despite their application, they still face several obstacles.

THE STRUGGLE OF INDIVIDUAL CANDIDATES IN ACHIEVING EQUALITY IN THE LOCAL ELECTION

2024-05-20T16:20:05+07:00

This article discussed two questions: First; does the regulation of candidacy requirements for individual candidate (non-party candidate) pairs in the local election emphasize the procedural justice more than the substantive justice? Second, does the regulation of the candidacy requirements for individual candidate pairs based on the Local Election Law and the candidacy requirements for individual candidates that apply in Aceh Province based on the Aceh Government Law (UU No. 11 of 2006) concerning Aceh Government indicate that there are equality disparities in democracy? To answer the questions above, this article used materials sourced from statutory regulations, decisions of the Constitutional Court, opinions of experts, legal theories or doctrines scattered in several books and articles in scientific journals. Furthermore, the results of the article conclude: First, individual candidates have a strong constitutional juridical basis after the 2007 Constitutional Court Decision (No.5/PUU-V/2007), the Local Government Law, and the Local Election Law. Second, the Aceh Governance Law and the Local Election Law show disparities in the regulation of the requirements for the amount of support for individual candidate (non-party candidates) pairs

ARRANGEMENT OF JUDICIAL POWER IN INDONESIA THROUGH THE IMPLEMENTATION OF ONE-STOP JUDICIAL REVIEW AT THE CONSTITUTIONAL COURT

2024-03-30T11:09:00+07:00

As it is known that the Constitutional Court (MK) has the authority to examine laws against the 1945 Constitution of the Republic of Indonesia, while the Supreme Court (MA) has the authority to examine regulations under laws against laws. The problems will arise if the review of statutory regulations against the law is taking place in the Supreme Court, while the law that is the touchstone is also being tested in the Constitutional Court and declared contrary to the 1945 Constitution of the Republic of Indonesia. So that, regarding on this issue, an idea emerged to carry out legal reforms related to the authority to conduct judicial reviews, namely by centralizing the authority of judicial review in the Constitutional Court or what is called a one-stop judicial review. The purpose of this research is to analyze the institutional model of judicial power in other countries in dealing with judicial review cases. In addition, the purpose is to analyze the legal reasoning for the application of one-stop judicial review in the Constitutional Court. As well as analyzing the design of a one-stop judicial review arrangement in the Constitutional Court. The method used is normative legal research using statutory, conceptual, and comparative approaches. The results of the study show that the consistency of the implementation of a judiciary is an important issue to achieve tiered norm justice. Norm disputes will not be a problem in judicial practice, both at the MK and MA institutions. However, it is different if the legal norms given by the court's decision contradict each other. So that it becomes a necessity to organize the judicial power in Indonesia through the one-stop judicial review authority in the Constitutional Court.

VERBALISAN WITNESSES : EFFECTIVENESS AND JUSTICE OF PROVING NARCOTICS CASES IN BOYOLALI

2024-02-04T08:14:15+07:00

Verbalisan witness, frequently associated with investigating witnesses, testifies as the defendant entirely or partially disputes the Police Investigation Report (BAP). The presence of verbalisan witnesses in the evidence of narcotics cases in Boyolali enhanced the conviction of judges in deciding narcotics crimes. However, it is vague whether providing verbalisan witnesses as evidence will still adhere to the principle of justice and be effective in proving narcotics cases. The purpose of this study aimed to discover and understand how effective and fair to present verbalisan witnesses in proving narcotics cases in Boyolali. This research employed an empirical juridical approach. This research was a descriptive study. This study administered primary data from interviews with judges, prosecutors, police, and advocates who had handled narcotics cases that presented verbalisan witnesses, and secondary data from literature. The results of researchers' observations on the effectiveness of verbalisan witnesses and fairness of proving narcotics cases in Boyolali indicate that the presence of verbalisan witnesses has fulfilled the values of justice and provided the effectiveness of proving narcotics cases in Boyolali.

EXISTENCE AND CHANGES IN THE MATERIAL JURISDICTION OF MINANGKABAU CRIMINAL COURTS IN WEST SUMATERA

2024-05-31T19:11:00+07:00

Indonesia is a country with various ethnic composition of the population. Each of these ethnic groups or tribes certainly has its customary or adat law that is different from one another. The ethnic group that still maintains the validity and norms of its customary law is known as customary law community. One of the unique and well-known customary law communities in Indonesia is the Minangkabau customary law community. The majority of its members inhabit the province of West Sumatra. Minangkabau Customary Law not only regulates the civil cases that arise in that law community, but also the criminal ones. In the event of a criminal case, the settlement is carried out through the mechanism of the customary criminal court. The material jurisdiction of the Minangkabau Customary Criminal Court is regulated in a law called “the Nan Salapan Law” (the eight law). After the issuance of the Emergency Law Number 1 of 1951, the material jurisdiction of the Minangkabau Customary Criminal Court was narrowed down to cases that had no equal in the Criminal Code and those that were comparable in the Criminal Code with the same criminal threat. However, in practice, in recent years, there has been a contradiction where this customary criminal court no longer follows the provisions of the Emergency Law Number 1 of 1951. The scope of the material jurisdiction of this customary criminal court has undergone a significant change. This court not only adjudicates criminal cases that have no equal in the Criminal Code but also adjudicates cases regulated in criminal legislation outside the Criminal Code, such as cases of sexual abuse, narcotic abuse, and criminal acts of domestic violence (KDRT). The author in this article seeks to examine and elaborate further on what things affect the changes in the material jurisdiction of the Minangkabau customary criminal court and what are the views of Minangkabau traditional leaders and law enforcement officials, especially the police and judges, in responding to these changes.

CORPORATE GUARANTEE DAN KEDUDUKAN HUKUM COMMANDITAIRE VENOOTSCHAP

2024-06-24T20:32:22+07:00

In this paper the author presents a legal perspective in an individual guarantee agency or borgtocht. Vennootschap Commanditaire (CV) which is positioned as a business entity that is not a legal entity taking the position as a corporate guarantee in the additional agreement of the main agreement, it is necessary to examine the legality and authority of the business entity to take legal action as a guarantor of Debtor debt. Issues discussed in this paper regarding the position of the CV as a corporate guarantee in the guarantor agreement and the validity of the CV to be the guarantor in a coverage agreement. The legal issues raised in this paper conclude that a CV which is a non-legal entity business entity cannot be positioned as a corporate guarantee or borgtocht because in the individual guarantee provisions in Article 1820 Burgerlijk Wetboek (BW) that can be a guarantor are legal subjects both legal entities (recht persoon) nor individuals (naturlijk persoon) and CV as business entities do not have the authority to act (bevoegheid) and the said guarantor agreement can be canceled (vernietigbaar) because it does not meet the subjective elements in Article 1320 BW.

THE EXISTENCE OF CONSUMER DISPUTE RESOLUTION BODIES IN RESOLVING CONSUMER DISPUTE CASES IN INDONESIA

2024-05-01T00:51:05+07:00

Consumer dispute resolution can be done through litigation or non-litigation mechanisms. Alternative dispute resolution processes, including through conciliation, mediation and arbitration, are carried out by the Consumer Dispute Resolution Agency. Non-litigation dispute resolution is one of the most popular methods because it can resolve cases faster and better. However, the large number of dispute resolutions through BPSK does not necessarily make its implementation without problems. There are at least 3 (three) obstacles that cause the existence of BPSK to not be optimal, namely disharmonization of regulations, minimal access to BPSK, and minimal public knowledge regarding the importance of protecting rights as consumers. So, to increase the existence of BPSK as a consumer dispute resolution body, the author considers that there needs to be several improvements in terms of legal substance (legal regulations) so that it does not overlap with judicial bodies and can provide legal certainty, then in terms of legal structure there needs to be equality in the provision of BPSK offices. down to districts/cities to facilitate community access, furthermore in terms of legal culture where there is a need to provide more understanding to the community regarding the importance of awareness to protect their rights as consumers.