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|Vol.17 No 1, Juni 2009|
ANALISIS DOKTRINAL TARAF SINKRONISASI VERTIKAL PENERAPAN NILAI KEADILAN SOSIAL DI BIDANG PENGELOLAAN SUMBER DAYA AIR
Fakultas Hukum Universitas Diponegoro, Jalan Imam Bardjo, S.H.,
Nomor 1-3, Semarang, Indonesia, Telpon (024) 8316870,
The researches about Water Resources Management were often have been done by previous researchers, but haven't reach the basic idea of water resources management related the social justice. The doctrinal analysis was chosen to examine synchronization in vertical perspective. There are two problems in this research, those are (1) How vertical synchronization grade in Water Resources Management?; (2) Why vertical synchronization grade in Water Resources Management was very difficult to be realized? These problems will be solved by doctrinal-research approach. The results show that there is inconsistency in implementing of social justice value in regulation of water resources management. There is no vertical synchronization in regulation between UUD 1945, UUSDA, PP 16 Tahun 2005, Permendagri No. 23 Tahun 2006 serta Perpres No. 77 Tahun 2007. Based on analysis of document about RUU SDA meeting and Decision of Court of Constitution (MK) about Judicial Review of UUSDA, there was evident that DPR and Constitutional Court were trapped into legal-positivism thinking. They did not conduct moral reading of Indonesian constitution. Through Perpres No. 77 Tahun 2007 that permits the foreign investors are able to occupy the share of water corporation until 95% more shows that disharmony in vertical perspective has occurred in regulation of water resources management.
Keywords: Vertical Synchronization, Social Justice, Water Resources.
KEANEKARAGAMAN DALAM KESATUAN HUKUM:
Model Interaksi Hukum Adat dan Hukum Negara dalam Hukum Agraria
(Studi Kasus di Sumatera Barat)
Fakultas Hukum Universitas Andalas, Kampus Limau Manis, Padang, Indonesia.
The regulation on agrarian resources can not be separated from adat law since they are located in the area where adat community lives. The lowest is their regulation by the state law, the greatest is the possibility for the adat law to fill in the substance of the regulation. The decentralization policy has opened the possibility for the local people to actualize the local adat law values through the legal products in the local area. This research studies the implementation of the actualization of the local values in the agrarian regulation in West Sumatera which is one of the areas which has a relatively strong adat law. Beside the implementation of adat law through the judicial process, this research is also focused on the integration between adat law and state law through the local legal products from the province level until the nagari (village) level. Based on the above considerations, the objective of the research is focused on three problems. They are: the first, how is the interaction between adat law and state law in the regulation of agrarian resources in West Sumatera before the era of decentralization? The second, how is the interaction between adat law and state law in the regulation of agrarian resources in West Sumatra in the era of decentralization, especially in the implementation of the system of nagari government? The third, how is the form of the integration between adat law and state law in pursuing the real legal certainty in agrarian sector?
Key words: interaction, adat law, state law, agrarian resources.
PERTAUTAN HUKUM ISLAM DAN HUKUM ADAT MENUJU SISTEM HUKUM NASIONAL
Fakultas Hukum Universitas Muhammadiyah Jakarta, Jalan K.H. Ahmad Dahlan, Ciputat, Jakarta Selatan 15419, Indonesia.
Customary is Indonesian indigeneous heredity which is usually unwritten and it existed since Indonesia got its independence. The existence of customary in Indonesia changes since Islamic religion entered and got its followers in Indonesia. The implementation of syariah causes diversity in Indonesian law, especially the laws related to family affairs. The role of Syariah and Customary is very important in determining positive laws. This study aims at finding out the relationship between the values in Syariah and the ones in Customary, especially in family affairs law. The finding shows that most of the componets research showed the similarities which correlated each other. The similarities between those values are expected to become the guidelines in determining positive laws.
Key words: correlate, syariah, customary
THE IMPLEMENTATION OF SHARI'AH IN NANGGROE ACEH DARUSSALAM IN THE INDONESIAN LEGISLATION SYSTEM
Iwan Satriawan and Nanik Prasetyoningsih
Faculty of Law, Universitas Muhammadiyah Yogyakarta, Jalan Lingkar Selatan, Tamantirto, Kasihan, Bantul, Yogyakarta, Indonesia.
The implementation of Shari'ah in Nanggroe Aceh Darussalam (NAD) has prompted controversy among legal scholars. Even though, the implementation of Shari'ah in NAD has been legally authorized by Dewan Perwakilan Rakyat (Parliament) and President through some legislations, debate on the issue has not finished yet. The issues rooted on whether the implementation of Shari'ah in NAD is contradict to Pancasila and UUD 1945 or not. Another question arises is whether the implementation of Shari'ah in NAD in line with the legislation system or not. The research shows that basically the implementation of Shaari'ah in NAD is not contradict to the principle lies in the Pancasila as fundamental norm of the state and UUD 1945 as the supreme law. In term of legislation, the DPR and President has enacted some legislation that legalized it namely NAD special Territory Act, 1999 (Law No. 44 of 1999, NAD Special Autonomy Act, 2001 (Law No. 18 of 2001), NAD Government Act, 2006 (Law No. 11 of 2006). By enacting these legislations, legally, the implementation of Shari'ah in NAD is clearly adopted as part of Indonesian legislation system. In this sense, the legislation system implements the principle of lex specialis derogate legi generali.
Keywords: Shari'ah, Implementation, Indonesian Legislation System.
PERLINDUNGAN HAKIM TERHADAP HAK-HAK ISTERI DALAM HAL SUAMI BERPOLIGAMI DI KOTA YOGYAKARTA
Fakultas Hukum, Universitas Muhammadiyah Yogyakarta, Jalan Lingkar Selatan, Tamantirto, Kasihan, Bantul, Yogyakarta 55183, Indonesia.
The research was aimed at identifying the protection for wives' rights provided by judges in granting the permit for husbands' polygamy and the effort done by wives in terms of unfulfilling their rights by husbands committing polygamy. This research was a normative law research which studied the law materials using the library research. The authoritative law sources were Koran and Hadits. The main resources were judges of religious courts. The results showed that: (1) the efforts attempted by the judges to protect the wives' rights in terms of husbands wanting to do polygamy, that is: (a) the judges invited the wives or future wives to be asked about the statement on the willingness to become first and second wives and asked to give description about the risks of having husbands doing polygamy. Then, the statements were done in the written form; (b) the judges asked the wivesâ€™ brothers and sisters to be present in courts to provide a statement saying that the wives are suffered from mental disorders and unable to be present in the courts; (c) judges asked the husbands to provide written statements stating that they are willing to behave fairly and able to provide guarantee for the wives and children's daily life needs. (2) wives' efforts to defend their rights which are not fulfilled by their husbands doing polygamy were wives putting forward the sue for their rights to the religious courts for Muslims, and to the State Courts for non-Muslims.
Keywords: Wives' Rights, Protection, Judges.
PENANGANAN PEMBIAYAAN BERMASALAH DALAM PELAKSANAAN AKAD DENGAN PRINSIP MURABAHAH DI BANK MUAMALAT INDONESIA CABANG YOGYAKARTA
Fakultas Hukum, Universitas Muhammadiyah Yogyakarta, Jalan Lingkar Selatan, Tamantirto, Kasihan, Bantul, Yogyakarta, Indonesia.
The aim of this research is to understand the aspect of settlement law of financial problem, handling of financial problem and law attainment used for the solution of financial problem within the implementation of principally murabahah covenant in Indonesian Muamalat Bank, particularly in Yogyakarta. The final conclusion for this research is the handling of financial problem within the implementation of principally murabahah covenant in Indonesian Mualamat Bank through redemption and settlements acts of financial problem. The redemption act is done by rescheduling. Besides that, reconditioning and restructuring are also conducted. Law attainment used in the settlement of financial problem within the implementation of principally murabahah covenant in Indonesian Muamalat Bank is by conducting bank internal settlement that is discussion to reach common agreement. Other than that, the settlement phases that can be done are denunciation to Bank of Indonesia, mediation even though for the settlement through that bank, arbitration, of which it is bonding and last, through BASYARNAS so that if there is an in-obedient side, they can demand for flat execution to Religious Court, litigation (Religious Court). The prosecution can be directly filed to Religious Court based on Constitution No. 3 of The Year 2006.
Keywords: Handling of Financial Problem, Murabahah Covenant, Indonesian Muamalat Bank
PELAKSANAAN PRIVATISASI BUMD DI ERA OTONOMI DAERAH DALAM SISTEM HUKUM DI INDONESIA
Fakultas Hukum Universitas Trunojoyo, Jalan Raya Telang PO. BOX. 2 Kamal,
Generally, the existing of Local Own Enterprise (LOE) was based on the willing of local government to intervene the economic life in that region. LOE as business instrument of the local government is valuable enough and gives benefits to the local development as part of the efforts to increase prosperous life in this era of regional autonomy. As stated in Indonesian Constitution 1945 Article 33, the local government (as representation of the state) has right to own LOE as company business. The need of owning this LOE by the local government is embodied in the Article 173 and 177 of the Law No. 32 of 2004. Privatization now becomes an alternative that should be done by State Own Enterprise (SOE) but not by the LOE. It is because of there is, until now, no Law that regulates the privatization in LOE. Now, the effort for privatization still becomes the local policy of each local government. The policy of privatization, then, becomes the important need if it is based on the need to increase local government in the form of public services quality as well as increase its local budget development.
Keywords: Privatization, Local Own Enterprise (LOE), Regional Outonomy.
PERLINDUNGAN HUKUM BAGI INVESTOR DALAM INVESTASI REKSA DANA
Fakultas Hukum Universitas Lambung Mangkurat, Jalan Brigjend H.Hasan Basry, Pangeran, Banjarmasin Utara, Banjarmasin 70123, Kalimantan Selatan, Indonesia.
The aim of this research is to find out: legal protection for investor in mutual fund investment. The research method used is normative legal research methodology, which is included librarian research using 3 (three) legal source, such as primer legal source, secondary legal source and last but not least ultimate legal source. The result of research are: Legal protection for investor in corporate mutual fund and collective contract investment is stated in multi fund management contract, the state regulation of capital market, and its executor regulations such as Securities Exchange (BAPEPAM) regulation and fiduciary duty.
Keywords: Legal Protection, Investor, Mutual Fund.
KONSTRUKSI HUKUM MALPRAKTIK MEDIK DALAM PERSPEKTIF HUKUM ISLAM
Ahdiana Yuni Lestari
Fakultas Hukum Universitas Muhammadiyah Yogyakarta, Jalan Lingkar Selatan, Tamantirto, Kasihan, Yogyakarta 55183, Indonesia.
Muhammad Endriyo Susila
Fakultas Hukum Universitas Muhammadiyah Yogyakarta, Jalan Lingkar Selatan, Tamantirto, Kasihan, Yogyakarta 55183, Indonesia.
In the last several years, medical malpractice has become an actual issue in Indonesia. As a legal construction, medical malpractice is not known in Indonesia. The concept of medical malpractice is still unclear for many people, including those who run the machinery of law. There is no specific regulation on medical malpractice in Indonesia therefore the cases were to be approached with the existing laws. It seems that developing what so-called the law of medical malpractice is urgent for Indonesia. It is interesting to know the concept of medical malpractice under Islamic perspective for the sake of legal development. It is believed that Islam is very much concerned with the issue of justice. In order to realise justice in the relationship between physician and patient, referring to the regulation provided in Islam is a smart choice. As we know that Islam is a religion of perfection. The teaching of Islam embraces all aspects of life. It is true that Islam provides all provisions needed by human being including medical malpractice issue. This paper tries to find out the concept of medical malpractice under Islamic perspective in order to know how liability upon the phisicians may run.
Keywords: Medical Malpractice, Jarimah Qisas, Diyat, Jarimah Taâ€™zir.
KEDUDUKAN PEMEGANG HAK JAMINAN DAN KOMPETENSI PERADILAN PAJAK DALAM PENAGIHAN PAJAK
Ahmad Rizki Sridadi
Fakultas Ekonomi Universitas Airlangga, Jalan Airlangga 4,
Telp. (031) 5033642, 5036584, 60286, Surabaya, Indonesia.
This research paper is aimed to examine legal problems arising out of conflicting rights concerning private rights owned by holders of security rights and public rights owned by state through Directorate General of Tax under the Ministry of Finance of Republic of Indonesia. This kind of legal problems occurred due to the tax (payable tax) collectivity conducted by Indonesia Directorate General of Tax against goods secured by guarantee rights (mortgage right, hypothecation, fiduciary right, and pawn). First chapter elaborated on legal matters which could be imposed by tax collectivity. Research continued to which of the two (private rights and public rights) would obtain priority right satisfaction of the secured goods if such goods are sold caused by bankruptcy or default by debtor. Another problem was whether Directorate General of Tax could be included as creditor or not. Further problem continued to the competency of the court which stood for different legal authority to examine and to settle this kind of case. According to this research tax obligation had highest position in all legal obligations hierarchy. Thereafter, settlement of this dispute lied on tax court. Role of tax court depended on whether or not process server of tax has implemented immediate and whole collectivity at time of obtaining two matters namely seizure of goods of tax payer by third parties or indications of bankruptcy.
Keywords: Tax collectivity, creditor-debtor, priority right, legal authority.
MEMBERANTAS TINDAK PIDANA KORUPSI DI INDONESIA DENGAN MENATA BIROKRASI DALAM KERANGKA GOOD GOVERNANCE
Fakultas Hukum, Universitas Bung Hatta, Jalan Gajah Mada Gunung Panggilung Padang 25143, telepon (0751) 705 1341, 705 4257, Indonesia.
Considering the severe corruption in Indonesia, its eradication then could not be conducted partially. It needs a holistic eradication corruption which involves the whole aspect, including Indonesian people and government institutions. Particularly from the side of government institution, it needs harder effort, related with the existence of bureaucracy obstacle and a poor good governance system inside the government organization.
Keywords: corruption, eradication, bureaucracy, good governance.
KEWENANGAN PENGADILAN AGAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH
Fakultas Hukum, Universitas Muhammadiyaah Palembang, Jalan Ahmad Yani, Ulu Plaju, Palembang, Indonesia dan Fakultas Hukum Universitas Bhayangkara Jaya, Jalan Dharmawangsa I, No. 1, Jakarta, Indonesia.
The authority of Religion Court in resolving the Shariah Banking disputes regulated in article 55, verse (1) of Shariah Banking Regulation. There are two types of dispute resolution methods, namely non litigation (out of court) and litigation (through the court). The resolution procedure using non litigation method basically uses the agreement from all parties. If the resolution is made through arbitrate institution, the procedure of the dispute resolution is regulated in Regulation No. 30 the year of 1999, about Arbitration and the Alternative of Dispute Resolution. The procedure of the resolution of the Shariah banking dispute which proposed by the law abider, an Islamic person or legal institution and/or they who abide the Islamic law can be done in two ways. First is special judicial procedure when the case is dismissed, canceled and verstek by the verdict of dismissal, cancelation and verstek. When the case is dismissed, and canceled, there will not be any legal action, but the related parties can reapply the case. When the case is on verstek verdict, the legal action will be in the form of verzet. The second is the regular case, it is applied when all the trial procedures are fulfilled perfectly and the granted or denied with appeal as the law action.
Key words: The Authority of Religion Court, Methods and Procedures of the Resolution of Shariah Banking disputes.