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Sriwijaya Law Review
Published by Universitas Sriwijaya
The Sriwijaya Law Review known as the SLRev launched on the 31st January 2017 and inaugurated formally by the Rector of the university is a forum which aims to provide a high-quality research and writing related to law. Areas that relevant to the scope of the journal cover: business law, criminal law, constitutional law, administrative law, and international law
Articles
30
Articles
Has Indonesia’s Unique Progressivism in Mandating Corporate Social Responsibility Achieved Its Ends?

Chang, Soonpeel Edgar

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

It has been a decade since Indonesia implemented its first mandatory CSR requirement. The time is ripe for the discussion: can Indonesia confidently say that it has saved Indonesia by making companies publicly answer for many social issues? Can it successfully bring social and economic justice by continuously enforcing this radical progressivism or utilitarianism? To begin to address these questions, this paper first examines Indonesias unique features that strengthen CSR as a legal obligation and analyzes the current regulatory frame of CSR. Then, it discusses whether these laws and regulations have actually worked as a practical tool to encourage and enforce companies to perform CSR activities. This research concludes that company law can save Indonesia despite its failure so far due to a number of problems in and out of positive law. It suggests how it can specifically structure the CSR regulations and seeks attention to the more structural reform from the longer-term goal of developing a national mechanism.

General Overview on Selecting and Drafting Construction Contract Disputes Resolution

Utama, Meria, Irsan, Irsan

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

A good international contract as the experts considered is the most complicated one the parties must draft carefully. It involves many stakeholders and containing documents to attach likewise financial judgment, technical specifications, work scope, rights, obligation, responsibility and other external factors which are beyond the parties’ consideration. A good design contract will prevent the parties from disputes. The dispute settlement mechanisms should be explicitly stated in the international construction contract. The nullity of the choice dispute settlement mechanisms or in the absence of the choice dispute settlement mechanisms and also the unperformed of the contract purposes will not prevent the dispute from being occurred. The most common process to resolve disputes is through litigation, but the process takes time, energy and funding. The method of alternative dispute resolution (ADR) such as mediation, conciliation, mini-trial, arbitration or other ADR techniques eradicate all the obstacles above. The question arises then, how the parties select the best alternative disputes settlement mechanism and how it should be drafted in their contract. Normative legal research is the method employed to respond the problems. Therefore, this article will elaborate the methods that will effectively settle the constructions disputes and mechanism in drafting construction contract disputes resolutions provisions

The History of Forensic Linguistics as an Assisting Tool in the Analysis of Legal Terms

Houtman, Houtman, Suryati, Suryati

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

One dimension of human life which become the issue and had been debated is about the used of legal terms which is against the language rules. The use of language and law are often oriented to non-substance issues, namely the used of formal legal terms which is inconsistent with the standard of the Indonesian language. As a result, such a linguistic study does not provide a functional and proportional impact in resolving the problems of the law itself. The study only becomes as an analysis report on the forms of error in the use of language in the realm of law which is expected to be a feedback for improving the quality of the language of law enforcement officers. Accordingly, the empowerment of forensic linguistics as a tool to solve the legal problems becomes important and made a choice in the field of science, especially in the universities. The various cases developing both in domestic and foreign countries have absolutely proven beneficial for forensic linguistic analysis. A lawsuit that comes from speech and transcribed in written language can be a preliminary proof the reporters used. This is also become complaint to the Police. The article examines whether forensic linguistics can be inferred unlawful speech.

The Enforcement of the 2009 Law Number 46 on Corruption Court: The Role of Special Corruption Court

Saragih, Yasmirah Mandasari, Berlian, Berlian

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

The Corruption Court is an independent special court under the General Court.  The objectives of creating the Corruption Court is, inter alia, to adjudicate the corruption cases, to eliminate the interference of other party involves in corruption cases, to keep the Court runs in the right path.  Herein, in the concept of rule of law, justice principle, under the ideology of Five Principles of Pancasila may only work well if it accompanied with other principles of social, economic, political, ideological, ethnic, racial, religious, color, and even gender background. Hence, the Judges have dual function both as sanction giver but also to deter other people not commit the same crime. In this connection, the preventive measures, such as counseling and providing legal information, as well as socialization of Corruption Law are perceived to be urgent as a new method for Indonesian in combating the corruption.   This study is a normative one but employing empirical- juridical approaches. The normative research was conducted to analyze the theoretical matters of legal principles, while the empirical approach employed in the form of observing the behavior of the suspect of corruption.  The findings of the study shows that the Art. 53 of the 2002 Law Number 30 it was in contradiction to The 1945 Constitution for the corruption cases cannot be tried in two different courts. That is the idea of the establishment of the Corruption Court as a special court besides the so-many corruptions committed in Indonesia where the verdict of the District Court is beyond the people’s justice

Consistency of the Presidential System in Indonesia

Kuswanto, Kuswanto

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

The current presidential system in Indonesia is the result of the amendments of the 1945 Constitution. Prior to Indonesian reform, the presidential system was influenced by a strong parliamentary pattern in which the president was responsible for the Peoples Consultative Assembly. Today, this provision is no longer exist. However, consistency of the presidential system is still problematic because the the dominance power of the president over the House of Representatives. These problematic points are not in line with presidential system principle because it reduce the authority of president. The Parliament may only establish any law as long as it is pursuant to the 1945 Constitution. This article aims to examine the issue of the Indonesian presidential system at least in two following sections. Firstly, it deals with dominance of presidential power over the House of Representatives. Secondly, president establishes the independent bodies such as Corruption Eraditation Commission (KPK) and National Commission of Human Rights (Komnas HAM) which are constitutionally less restricted.

The International Cooperation to Eradicate Illicit Firearms Trafficking in Southeast Asian Region

AK, Syahmin, Fidelia, Fidelia

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

The term of illicit firearms trafficking used by the United Nations is a movement of illegal trade in firearms controlled by organised criminal groups. Such movement specifically in ASEAN region is against national and regional laws. Hence, the growth in illegal firearms trade increases concern to the Southeast Asian countries. The article aims to examine effort to eradicate illegal firearms trafficking in ASEAN countries. Statute method combined with case approach in Southeast Asian Countries is employed in this research. The findings of the research indicate that the ASEAN countries have utilized diplomatic means namely the ASEAN Regional Forum (ARF) and the establishment of ASEAN Police (ASEANAPOL). These forums propose by ASEAN Political-Security Community (APSC) in a way to coordinate among the chief of national police of ASEAN countries including, inter alia, law enforcement policies, criminal courts and transnational crimes to combat crimes committed in the ASEAN region. In fact, the effectiveness of the APSC is still in question because the illicit firearms trafficking cannot be demolished.

Presidential Permit to Summon Suspect of Corruption of the Member of the House of Representatives

Ramiyanto, Ramiyanto

Sriwijaya Law Review VOLUME 2, ISSUE 2, JULY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

Summoning the suspect is one step in the process of investigation in the criminal justice system which had been regulated in the Criminal Code Procedure and in other special laws. However, presenting the suspect of the member of the Parliament before the Court is the problematic one. This is because in reality, it does not need a President permit but legally it does. The problem is whether pre-senting the suspect before the court without a Presidential Permit is not against the law. The findings showed that the regulation dealing with the summoning of the parliament member suspected of cor-ruption is not necessarily required. It is because the crime suspected to the members of House of Rep-resentative is included in the special crime which is stipulated the 2002 Law Number 30 deals with Corruption Eradication Commission Article 46 paragraph (1) with the elucidation in junction to Arti-cle 245 paragraph (3) sub paragraph c.

Legitimacy as a Precondition for the Recognition of New Governments: A Case of Libya

Saugheh, Hamed Hasyemi, Nordin, Rohaida

Sriwijaya Law Review VOLUME 2, ISSUE 1, JANUARY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

Recognition of new Stets and governments is a political act with legal reverberations. Although the recognition of new States and governments is a traditional concept of international law but the challenging recognition of the transitional government of Libya proved that this traditional concept still can be highly exigent. Traditionally, the States in providing recognition to a new government follow their own benefits and privileges and rarely consider the structure, capacity and public support for the new government. If the rule of law and respecting democracy is going to be means of promoting peace and security is various areas of the world, is not it time to redefine the traditional concepts of international law (included of recognition of new States and government) from a new perspective? Considering the fact that, the existence of a legitimate authority in a group enhances the effective functioning of that group and reduces the internal conflicts, it seems that it is time to expand the political concept of legitimacy of the authorities into the international law. Is there any State practice to support the argument? In this article, the existence of norm creating forces and role of legitimacy in the recognition of the Libyan Transitional Government is going to be analysed. The After studying the role of legitimacy of the Libyan NTC in passing the sovereignty from the past regime to the new government by the international community, the effect of lack of legitimacy on the previous regime will be examined and the question of withdrawing of recognition of governments will be addressed.

Inability of Protecting Diplomats: Problems of Afghanistan and Conflict Countries

Sukarmaji, Ananda Kurniawan, Afriansyah, Arie

Sriwijaya Law Review VOLUME 2, ISSUE 1, JANUARY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

This article discusses the protection of diplomats and state responsibility of physical suffering of diplomats in conflict countries, especially in Afghanistan using juridical normative methodology. This concern has to be discussed because there are a lot of attacks and physical harms suffered by the diplomats, especially in armed-conflict countries. This article analyzes the practices of protection of diplomats in some conflict countries and explain the conventions that include protection of diplomats as a part of the conventions. Thus, conflict countries are more tendentious than non-conflict countries in terms of numbers of attacks and physical harms suf-fered by diplomats. Therefore, this article analyzes the conflict country and categorizes the terms and conditions in the conflict countries. After looking into the pattern of protection of dip-lomats in some countries, this article analyzes the response shown by the receiving and sending state. There is also a discussion of the attacked diplomat cases in Afghanistan and the responses issued by the related parties. Then, protection of the diplomats and state responsibility are ana-lyzed based on the related doctrine and conventions. Changes in protection of diplomats in Af-ghanistan should be done and Afghanistan should be more concerned about this matter and based on the diplomatic convention, sending state could file a dispute settlement to an arbitrary organ and International Court of Justice to claim state responsibility. Based on the conventions and doctrine related, Afghanistan could be charged as the full responsible party

Data Protection in Financial Technology Services (A Study in Indonesian Legal Perspective)

Anugerah, Dian Purnama, Indriani, Masitoh

Sriwijaya Law Review VOLUME 2, ISSUE 1, JANUARY 2018
Publisher : Faculty of Law, Sriwijaya University, Indonesia

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Abstract

The banking sector is facing a new competitor, namely Financial Technology (Fin-tech). Fin-tech itself can be described as an industry composed of companies using a new tech-nology and innovation with available resources in order to compete in the marketplace of tradi-tional financial institutions and intermediaries in the delivery of financial services. In Indonesia, Fin-tech has been widely developed since the past 3 years. Fin-tech faces a new challenge as a new service for financial consumer which adapts to new ways of living in modern digital tech-nology era. Basically, Fin-tech offers three main categories such as payment, personal finance, and financing. In financing application there are peer to peer financing, social crowd funding, and loan marketplace. All of these kinds of application have some issues in legal framework and data protection due to the use of communication technologies such as internet, social networks, Smartphone, massive use of data with the Big Data, connected objects, etc. The use of big data and those new technologies create new opportunities for these sectors, and this development also raises significant data protection concerns. This paper discusses two legal issues of Fin-tech, the legal aspect, and the data protection.