Study of constitutional court decisions cancelling all norms in the law

This article is the result of research on the heart article in the 3 Constitutional Court Decisions which canceled the entire contents of the law, namely the Constitutional Court Decision Number 001-021-022/PUU-I/2003 which canceled Law Number 20 of 2002 concerning Electricity, Constitutional Court Decision 006/PUU-IV/2006 which canceled Law 27 of 2004 concerning the Truth and Reconciliation Commission, Constitutional Court Decisions 11-14-21-126 and 136/PUU-VII/2009 which canceled the Law Number 9 of 2009 concerning Legal Education Entities, and the Constitutional Court Decision 85/PUU-XI/2013 which canceled Law Number 7 of 2004 concerning Water Resources. The term 'heart article' is the term coined by the Constitutional Court and used as the main reason for canceling the entire contents of the law. Unfortunately, in these decisions, the Constitutional Court did not elaborate further on the concept and characteristics of an article categorized as the heart article. Departing from this issue, this research aims to find out what are the concepts and characteristics of the "heart article" of a law that was completely canceled by the Constitutional Court? To help answer this question, this research employed a normative method intended to trace all legal materials, both of the Constitutional Court decisions, statutory regulations, to the literature supporting the research. The importance of this research is to give meaning to the concept of the heart article, which, in the development of legal science, is still rarely discussed. Moreover, it can serve as a reference for petitioners to conduct the judicial review and to identify whether the article being tested is the heart article.

The ambiguity of dismissal of notary over bankruptcy in Indonesia

A notary is a public official who has the authority to make authentic deeds and other authorities regulated in-laws and regulations. Notaries are also private legal subjects (natuurlijk persons), which have free will to carry out legal actions. According to the Law on Notarial Positions, a Notary is dishonorably dismissed when (s)he is declared bankrupt. On the other hand, the UUK and PKPU recognize the rehabilitation of bankrupt debtors if they have fulfilled their obligations. This is where there is ambiguity or a fuzzy norm (vegen norm). Legal research aims to find out how bankruptcy is regulated in the notary position, and what are the legal consequences for the position of a notary both as a person and in relation to his/her position as a notary public? This legal research is normative juridical using a statutory approach and a conceptual approach. The legal materials obtained are analyzed using content analysis. The results of the discussion: 1). Notary bankruptcy has been regulated in UUK and PKPU as well as in the Law on Notary Position. 2). The legal consequences for a Notary who is declared bankrupt by the Commercial Court have an impact on the notary's personality, as well as on his position. According to the Law on the Position of Notary Public, if violating Article 84 which results in losses to the parties, the notary is obliged to pay compensation. According to the UUK and PKPU, this could result in the debtor losing the right to act freely on his assets, but not losing the right to perform his/her tasks and hold a position. As a recommendation, in the Law on the Position of Notary Public, it is necessary to clearly define the separation of Notary as a person from her/his position as his profession.

Transgender viewed from the perspective of positive law, health, and cultures in Indonesia

Transgender people are seen as an abnormal minority group that bends the accepted sexual orientation against the cultures in Indonesia. This trend is also believed to be more prone to diseases. From the perspective of ius constitutum, transgender people are under different protection as set forth in Article 1 paragraph (3) of Law Number 39 of 1999 and Article 28 J of the 1945 Indonesian Constitution. However, the human rights governed are restricted to moral and religious, security, and public order rights. In the view of the positive law, in terms of health, every individual has the right to decide how they should live their life, but health is generally linked to diseases. When it comes to this matter, it can also be deemed inappropriate or deviant. Transgender people may be deprived of society, and they may have narrower room for their day-to-day activities such as mingling in religious activities and society, and even going to the restroom). This sexual tendency could also cause a serious disease like HIV/AIDS and irritate others due to their existence around them. In a different view, transgender people are recognized by the State that attempts to save them from conflicting thoughts of their existence. To conclude, being transgender is an inner disease existing in an individual. Although it is seen as normal by transgender people, this reality is still seen as discomfort by others.

The integration of the authority of judicial institutions in solving general election problems in Indonesia

The authority to adjudicate general election problems/ disputes scattered in various judicial institutions has made the resolution process drawn out and, complicated, creating overlapping powers and the potential for conflicting decisions between judicial institutions. This study examines how the judiciary's authority is regulated in adjudicating election problems, why it is necessary to integrate judicial authority, and how the concept of the judiciary's power is in judging all general election problems. This research aims to map the judiciary's power and find the judicial institution's design with an authority to adjudicate all general election problems. This study used juridical-normative research with a statutory approach, conceptual and case approaches. The results show that the authority to judge general election problems is given to the Constitutional Court, Supreme Court, State Administrative Court, and District Courts of Appeal. The large number of judicial institutions authorized to judge has been proven to be incompatible with general election administration and judicial power administration principles. The authority to adjudicate all election issues must be exercised in one judicial institution. The judiciary that can exercise this authority refers to the Constitutional Court, the Supreme Court, or the exercise can be performed by establishing a remarkable judicial institution.

Formal genus of the value of justice in Indonesia

This research aimed to find the formal genus of the value of justice in Indonesia. As known, justice that holds the sense of plurality universally transcends the boundary of formality of narrative texts in a normative way. The plurality of the value of justice that is laden with universality transforms to the genus of the school of thoughts vis-à-vis justice throughout history. Reduced meaning of justice in the perspective and the process of legislation is not powerful enough to negate the genus of justice that inherently represents the fundamental characteristics of justice. The look of the legislative process attractively reflects the genus of hunger for power intended to justify ambitions among factions in the domain of democracy. The formality in the legislation no longer represents the principle of the definition of the legislation and it is getting further away from the reach of the definition of aspiration, let alone to become an inspiration of the objectives of the state as mandated in the constitution. Holistic approach used in this research to find out the formal genus of justice in Indonesia. This research found that religious matters in the legislation-related authorities have become an acceptable ornament among the piles of the works of morality. The integrity that has become the genus of justice morality has transformed into a collection of texts hanging all over the wall of the national parliament. Religions are used as tools of negotiation in the formulation and the making of narrative texts before they are further transformed into legislation. Religions and powers in legislation are competing to find their point of the genus of normativization as expected by each faction. Law came into existence earlier than expected, leaving behind its umbilical cord like a prematurely born soul, the cord through which the values of justice are transferred from its mother, and these values have the dimension of plurality. Law is born, but since it is separable from its genus, it does not carry much of the meaning of birth.

Comparing patent protection in Indonesia with that in Singapore and Hong Kong

The discovery of technology has a huge impact on the economy of a country, so many countries focus on developing technology and apply this technology in their respective countries. Technological inventions must register patent rights to obtain legal protection to avoid losses that will harm inventors, stimulate creativity in creating new technologies and create fair business competition among companies engaged in technology. This normative research aims to compare patent protection in Indonesia, Singapore, and Hong Kong. The benefit of this research is that it can contribute to scientific literature in the field of patent rights, can provide an overview of the form of patent rights arrangements in several countries outside Indonesia, so as to avoid disputes and/or misunderstandings with other countries. The participation of Indonesia, Singapore, and Hong Kong in ratifying the Convention on the World Trade Organization and the agreement on the Trade Aspects of Intellectual Property Rights (TRIPs) obliges these countries to establish regulations on patents in their respective countries. Although the application of patent law in Indonesia, Singapore, and Hong Kong is based on the terms of the TRIPs agreement, the implementation and regulations must have differences. Patent registration in Indonesia, Singapore, and Hong Kong have the same procedure, namely fulfilling the formal requirements, substantive examination, then the announcement stage. The term of patent protection in Indonesia and Singapore is similar, which is 20 years from the date of filing. However, it is different from Hong Kong, namely from the date of filing. In patent disputes, there are two ways of settlement, namely litigation and non-litigation. Patents in Indonesia, Singapore, and Hong Kong have another similarity, namely that they are transferable and can be licensed. The focus of this research is only to compare the application of patent law and not to examine its strengths and weaknesses, so it is considered important to do further research on this matter.

Revisiting the need to regulate foreign portfolio investor in the Indonesian stock market

This research aims to reintroduce the issue of foreign portfolio investment in Indonesia by way of presenting an analysis on the prevailing Indonesian laws and regulations, comparative analysis with well-established jurisdictions, as well as an evaluation on the need for regulating foreign portfolio investment in Indonesia. The methods used in this research combine normative and empirical methods where a review is conducted on the laws and regulations in Indonesia as well as in South Korea and India as comparative jurisdictions, in addition to an interview conducted with the Indonesian Stock Exchange. The research found that Indonesia does not have a separate, comprehensive set of regulations on foreign portfolio investments yet whereby inferences need to be made from the prevailing laws and regulations that are general in nature. After the comparative overview and analysis, there appears to be a need for separate regulation for foreign portfolio investments in Indonesia, either by way of enacting a completely new set of laws and regulations or alternatively, by way of creating implementing regulations to support the prevailing laws.

Consumer protection in financial institutions

The relationship between financial institutions and customers is like two sides of a coin. On one hand, it is mutually beneficial, but on the other hand, this relationship can lead to mutual harm. Customers of financial institutions have a medium for a long-term relationships. Consumers of financial institutions generally have an average relationship of 24 months. Consumers make loan payments according to the agreed time. Customers will be able to get the right to the collateral if the loan has been paid. Conversely, if customers are unable to pay the installments on time, financial institutions will repose the collateral. From the inception of the loan to the repayment of the loan, the relationship between customers and financial institutions experiences several conditions. This research uses a normative judicial method, aiming to analyze consumer protection of non-bank financial institutions based on the existing laws and regulations. This research will focus on consumer protection from the start of the standard agreement, the fees or expenses charged, to the loan repayment mechanism. This research concludes that the protection of consumers of non-bank finance companies, especially finance companies, is still very weak. Consumer protection for finance companies, especially non-banks, has not been fully accommodated in the existing Consumer Protection Law. Therefore, the authority needs to issue a regulation in protecting the consumer in the financial industry.

Islamic triangle concept of marital age: Indonesian experience

Marriage is a sacred act that no one will doubt. The sacredness of marriage does not mean that every person could be married. There are legal competencies in Islam that every person should be aware of before doing any legal acts. Islamic law sets two indicators of legal age; both are bālig and rusydan. Indonesia has determined the age of 19 to be a formal legal age of Indonesian people for their marriage. Finding the connection between the two indicators and concluded age is worth studying. The article aims to correlate Islamic legal competence with the marriage readiness and triangle analysis of legal age marriage based on Indonesia's factual issues. The article was described and analyzed qualitatively and based on the normative legal review. The review found out that ahliyyatul adā` al-kāmilah is the appropriate phase-in doing all legal activities, including marriage. The concluded age of 19 by the Indonesian government is well-measured when it was analyzed through the three parallel concepts: maslahah, ra’iyyatul imam manūtun bil maslahah, and sadd al-zarī’ah, all of which allow valuable considerations based on actual problematic issues of underage marriage.

Criticisms toward the job creation bill and ethical reconstruction of legislators based on prophetic values

Post the issuance of Law Number 11 of 2020 concerning Job Creation, the public paid more attention by continuing to protest and criticize. This response occurred due to various legislative deviations noticed during the legislative process of the Job Creation Bill by not adhering to the principles and procedures for the formation of laws and regulations. The main cause for this deviation is due to the ethics of the legislators who are not thoroughly compliant and obedient toward the statutory regulations and social ethics. Legislators’ understanding of law and life tends to be influenced by materialistic-positivistic views that bring forth consumptive, hedonistic, and secular demeanors and behaviors. On this basis, this paper tries to criticize and reconstruct the legislators’ ethics in law-making. This study is using a normative juridical method and is supported by a philosophical approach. The outcomes of this research show that the process in the making of the Job Creation Bill tends to override the principle of transparency and public participation with a closed and hasty pattern so that it is a complete ulterior hasty agenda that prioritizes the concept of regulating and monitoring only (top-down). A work ethic based on prophetic values that are supported by the ground principles of a prophetic paradigm that includes humanization, liberation, and transcendence into a new form of construction to be able to create a better and just legislative process.