Penerapan Omnibus Law dalam Undang Undang No. 11 Tahun 2020 tentang Cipta Kerja

Pada Juli 2020, World Bank mengubah indikator pengukuran katagori pendapatan negara dan mengklasifikasikannya ke dalam 4 kelompok negara yaitu, pendapatan rendah (low income), pendapatan rendah menengah (lower-middle income), pendapatan menengah keatas (upper-middle income), dan pendapatan tinggi (high-income). Dari perubahan indikator tersebut menempatkan Indonesia pada katagori upper-middle income dari yang sebelumnya lower-middle income. Peningkatan pendapatan Indonesia terus diupayakan dan didorong oleh pemerintah melalu regulasi-regulasi yang mendukung salah satunya dengan membentuk Undang-Undang No. 11 Tahun 2020 tentang Cipta Kerja atau UU Cipta Kerja. Pembentukan UU Cipta Kerja merupakan yang pertama kali di Indonesia dengan metode Omnibus Law sehingga membawa dampak bagi peraturan perundang-undangan lain yang terkait. Pada prinsipnya penerapan Omnibus Law sudah banyak diterapkan di negara-negara dengan common law system sedangkan untuk penerapannya di Indonesia memiliki beberapa permasalahan mengenai pembentukan perundang-undangannya karena menganut civil law system.

The Conceptual Analysis of the Doctrine of Proportionality and, its Role in Democratic Constitutionalism; A Case Study of UK

For the last few decades, the doctrine of proportionality has demonstrated and corroborated that it is the most effective legal standard used around Europe for the adjudication of constitutional rights. From its German origins, proportionality has migrated across jurisdictions and areas of law and has become one of the most successful legal transplants. However, there is some confusion as to whether there is any justification for the intervention of this in the UK's legal system, as the UK's legal system is based on common law, and did not welcome this doctrine very much. Therefore, it is essential to analyze the basic principles of this doctrine and check its compatibility with the common law system, which is based on democratic norms. To test the similarity, this article would also reflect on the underlying characteristics of the theory of proportionality and equate it with the standards of a democratic society. To begin with, this article first endeavors to analyze the legal sources of the doctrine of proportionality and then examines its affinity with the democratic norms of the common law system to investigate the compatibility level with each other in protecting the constitutional rights of the people.

Perbandingan Hukum terkait Pembentukan Pasal Penghinaan terhadap Peradilan, Perzinahan, dan Santet dalam RKUHP Indonesia

Penelitian ini bertujuan untuk menganalisis aspek perbandingan hukum terkait pembentukan pasal penghinaan terhadap peradilan, perzinahan, dan santet dalam RKUHP Indonesia. Penelitian ini menggunakan metode penelitian yuridis normatif dengan spesifikasi bersifat deskriptif. Adapun metode analisis yang digunakan dalam penelitian ini adalah analisis perbandingan hukum. Perbandingan hukum dilakukan untuk mengetahui persamaan dan perbedaan unsur dari setiap sistem hukum, sehingga dapat menjadi alternatif dalam menyikapi persoalan-persoalan tertentu. Hasil penelitian menunjukkan bahwa Indonesia menganut civil law system sebagai warisan dari Belanda. Akan tetapi, tidak ada lagi negara yang murni menganut civil law system atau common law system. Perpaduan antara civil law system dan common law system di Indonesia disertai pula dengan perpaduan antara unsur hukum agama dan hukum adat. Hal ini dapat diketahui dari aspek perbandingan hukum terkait pembentukan pasal penghinaan terhadap peradilan, perzinahan, dan santet dalam RKUHP Indonesia. Tindak pidana penghinaan terhadap peradilan atau contempt of court dirumuskan dalam Pasal 302-325 RKUHP, dimana muatan dari Pasal tersebut merupakan perpaduan dari common law system. Tindak pidana perzinahan dirumuskan dalam Pasal 418 RKUHP, dimana muatan dari Pasal tersebut merupakan perpaduan dari hukum agama yang ditransformasikan ke dalam sistem hukum Indonesia yang menganut civil law system. Tindak pidana delik santet dirumuskan dalam Pasal 252 RKUHP, dimana muatan dari Pasal tersebut merupakan perpaduan antara sistem hukum adat dengan sistem hukum agama yang berusaha diterapkan ke dalam sistem hukum Indonesia. Olehnya itu, disarankan agar peran perbandingan hukum dalam menelaah proses pembaharuan hukum harus terus dilakukan, sehingga sistem hukum di Indonesia terus bergerak ke arah yang lebih baik.

‘Throwing a Baby with Bathwater,’ Restoration of the Tanzanian Indigenous Justice System: The Case of Sukuma, Kinga and Iraqwi Ethnic Groups

The indigenous justice systems were modes of resolving conflicts in Tanzanian communities for millenia before the introduction of the common law system as it was applied in England. The introduced mode, despite its success, is encumbered with a number of challenges. Apart from the challenges, the restoration of one’s customs and traditions is what makes one a human. The conventional justice system being ‘water’ to clean off dirt, the ‘baby’ is celebrated for what it has so far achieved; thus, the washed baby should not have been thrown into the water because in Africa, and Tanzania in particular, no one denies how valuable a baby is to parent and the community at large. Despite Tanzania’s efforts in capturing the bits of indigenous justice systems, the laws in place to a great extent roll on the bits of the conventional justice system. Protecting and preserving one’s customs has caught the interest of the international and regional community. That should awaken Tanzanians to look for the baby (indigenous justice systems) and appreciate its beauty. Ratification of the convention on tribal and indigenous people is optional; its negation devalues one’s customs and traditions. This paper comes with a reformatory agenda. The pumpkin in the homestead cannot be uprooted i.e. indigenous traditions must be preserved.

Complicity in the common law system: General characteristics

Complicity in the common law system has been subject of different practices in different countries for many years. It is unlike the practice in the majority of continental criminal justice systems. However, the court practice and principles established over time in certain countries have had greater effects than in some other countries using the same system. English common law practice is an example. It is the common law system with the strongest influence. Its practice regarding complicity was established a long time ago in 1861 Accessories and Abbettors Act that was the main law regulating this issue for over a hundred years. Besides very well-established actus rea elements, the main mens rea condition for complicity was a perpetrator's purpose or knowledge of the main criminal act. During 1985, the complicity concept was changed with the final judgment in the case "R v Jogee (Appellant) and Ruddock (Appellant) v The Queen (Respondent) (Jamaica)." The point of this reform was the "joint criminal enterprise" concept that was based on the "foreseeability standard" that made an accomplice responsible even for crime acts that were outside the "common plan or the purpose". After 30 years of implementation, the case of Privy Council Chang Wing-Siu v The Queen reset the complicity doctrine again and got it back to its traditional principles claiming "foreseeability standard" unconstitutional. Due to the importance of the common law system in Great Britain for other countries applying the same system, some of them, including Australia and Jordan, accepted the same complicity principles as Great Britain. Both of the mentioned systems adopted the "joint criminal enterprise" concept, but they developed it within their national criminal laws demanding extra responsibility claims for the accomplice. Unlike them, the US common law is characterized by other elements. Among them, the main ones are its inconsistency in terms of different practices at the state and at the federal level, as well as the lack of codification relating to many criminal law principles, including the complicity doctrine itself. These issues and problems have been a subject of interest of many scholars and practitioners in the common law system. The common denominator of their remarks regarding the problem is the need for a comprehensive reform of the current criminal law regulations and practices. Model Penal Code was a partially successful attempt of such needs but with limited effects. Taking in consideration all problems that exist regarding the complicity doctrine in the common law system, it seems further reforms and codifications of the complicity doctrine are the best way out of the current confusion where this doctrine seems to be stuck.

The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses

Can the oath, affirmation, or admonishment really be selectively administered on some witnesses but not on others? Sworn testimony is one of the most important features of the law of evidence. It is central not only to the continental system of law but also the common-law system on which our South African law of evidence is based. Witnesses testifying in formal court proceedings are required by statute law to swear an oath or make an affirmation or be admonished as to the truth of their testimony. But why is the same requirement not obligatory in statutory labour tribunals, where presiding officers have the prerogative to decide if they require witnesses to be sworn in prior to testifying? In this article, I criticise this prerogative for being ill-conceived, and advocate for its amendment.

Problematic issues of qualifying criminal omissions

Criminal code of Georgia (7th article) defines crime. According to this article main element of a crime is an action. Action is also the first and the most important element of actus reus in Georgian criminal law. In this case, action includes not only criminal activity, but also criminal inaction. According to Georgian criminal law, there are two forms of inaction: typical inaction and mixed inaction. Mixed inaction is much more serious crime than typical inaction. While qualifying inaction the most important issue is the obligation on action, whether it was because of profession, previous action or special relations with the victim. The research includes detailed review of Georgian criminal law in the field of qualification of criminal inaction. Georgia belongs to continental law system. There is big difference in this field between continental law system and common law system. In continental criminal law system, every type of inaction is a crime, while in common law system, typical inactions, like leaving person without help in danger, is not a crime. Main aim of criminal law is to avoid harm of such values like life, freedom etc. That’s why it is important to prevent such harms. The research includes analyzing of this differences. The most important issue while qualifi cation of inaction is practice of Georgian Supreme Court. So, the re- search includes detailed review of Georgian Supreme Court decisions in this fi eld. To sum up, the research includes following issues: Theoretical research on qualifi cation of inaction, practical recommendations, review of Georgian Supreme Court practice, specifi cs of common law countries.

“Halal” Abortion in Perspective Common Law system,Civil Law System and Ius Constituendum : Towards Legality and Safety

Background: To safe services in hygienic conditions must be made widely available and affordable, so that the stigma associated with providing and obtaining abortions can lessen and safe services can become normal and accepted, abortion is broadly legal, widely available and safe in Indonesia.Objective: The purpose of this article to discuss ius constituendum on abortion in Indonesia from criminal law perspective between Common Law System and Civil Law System.In Indonesia Ius Contituendum on abortion is not directed to legalization of abortion as carried out both in Netherland and USA but tends to be harmonized with therapeutic abortion concept both medical and psychiatric fields.Material and Method: Systematic review of studies evaluating the prevalence of unsafe abortion in Indonesia.Results: The public health tragedy caused by unsafe abortion is all the more so because it is largely preventable, by improving the quality and availability of post abortion care, by making abortion legal and increasing access to safe services, and—because almost every abortion is preceded by an unintended pregnancy—by expanding access to contraceptive information and services. Restrictive laws have much less impact on stopping women from ending an unwanted pregnancy than on forcing those who are determined to do so to seek out clandestine means. Ironically, the abortion laws governing of Indonesia is holdovers from the colonial era.Conclutions: “Halal” abortion is making a significant contribution toward reducing the need for abortion altogether and the likelihood of unsafe abortion by bringing down the rates of unintended pregnancy. This is also helping to reduce complications of unsafe abortion through its support for programs to increase access to and improve post abortion care. This includes not only treatment for septic or incomplete abortion, but also essential post abortion.Keywords: “Halal” abortion, the public health tragedy, unintended pregnancy Common law system,Civil law system and Ius Constituendum.

Adversary System in Common Law Countries and Possibility for Implementation in Indonesian Court

This research tries to open the possibility of implementing an adversary system which is very closely related to the common law system in Indonesia, especially concerning the “The Rights of the Accused” in the criminal justice process. This research is carried out normatively by conducting legal studies through literature and legislation. The result of this research is that if the accused declared himself guilty of the crime he committed, this means that the accused will lose his right to be tried and processed fairly trial in the common law system. If a defendant is declared guilty, then the next process is the conviction without trial, in which case there are weaknesses in the rights of the accused that should have been carried out through a jury trial. Is it possible to apply in Indonesian courts? Is it not contrary to the norms contained in the Code of Criminal Procedure (KUHAP), especially regarding the rights of suspects relating to human rights (HAM), such as equal treatment before the law; put forward the presumption of innocence; the right to compensation; right to legal assistance; the defendant's rights before the court; a free, fast and simple trial; and a court that is open to the public. However, if possible in Indonesia to switch to the adversary system, the judge's role can be limited only as a referee to allow the creation of a fair trial. The party in charge of deciding whether or not the defendant is right is the jury.