The Influence of Transjudicial Conversation in the Cross-fertilization of Philippine Human Rights Jurisprudence

Transjudicial conversation refers to the domestic court's judicial practice of cross-citing foreign decisions on common and shared human rights issues. Scholars have argued that this phenomenon facilitates the cross-fertilisation of rights norms and standards across territories. While this has been documented and studied in various jurisdictions, its incidence and effect in the Philippine context is yet to be fully understood. The paper thus seeks to explore the extent of such influence in the Philippine setting, specifically in the development of domestic human rights jurisprudence. In order to examine its impact, this research employs a qualitative research design. Select cases on free speech and religious exercise rights were analysed using doctrinal and content analysis approaches. These cases were purposively chosen, considering that Philippine provisions on these rights have shown close affinity with foreign constitutions. The analysis reveals that the participation of the Philippine Supreme Court in the transjudicial conversation phenomenon generally causes the cross-border fertilisation of human rights norms. Particularly, the impact of this engagement contributes to filling the gap in the domestic understanding of human rights concepts, expanding existing legal systems such as human rights and penal laws, and aligning national human rights systems with international laws. Such impacts enrich the domestic understanding of free speech and religious rights, specifically drawing bright lines between legitimate state intervention and individual enjoyment of the rights

The Legal Politics of Outsourcing and Its Implication for the Protection of Workers in Indonesia

This research aimed to analyse where the legal politics concerning outsourcing in Indonesia's legal system by scrutinizing its regulation in Book III of the Civil Code and enforcement of the Government Regulation in lieu of Law concerning Job Creation Law Number 6/2023, with its following implication to protect workers at the national level. This research employed doctrinal legal research on legal instruments related to outsourcing with statutory, conceptual, and historical approaches. The research showed that legal politics concerning outsourcing had experienced dynamic congruence with the political configuration when the legislative product on outsourcing was made. The differences emerge where outsourcing is not restricted to certain occupations in Book III of the Civil Code of Indonesia. However, Law Number 13/2003 restricted the definition of outsourcing to occupations not related to core businesses. Law Number 11/2020 and Government Regulation Number 35/2021 fit employers. Both laws govern the legal protection for outsourced employees with the transfer of undertaking to protect employment regarding changing vendors with the condition that the jobs are still available. Meanwhile, the type of work outsourced is unlimited, resulting in a deficit compared to the previous norm

Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases

Criminal law in Indonesia has yet to guarantee justice and human rights of bona fide (good faith) third parties in protecting their confiscated assets in corruption and money laundering cases. Criminal procedural law is inadequate in providing assessments for bona fide third parties. Therefore, Economics and Anthropology are needed in the investigation stage up to the evidentiary stage during trials. In this research, the main problems are formulated as follows: (1) what is the concept, definition, and scope of the assets of third parties in good faith in the laws and regulations in Indonesia? (2) how is the application of legal provisions regarding the protection of third parties with good intentions in corruption and money laundering? (3) what is the ideal role of the Public Prosecutor and Judge in protecting the property of a third party with good intentions in the criminal justice system? Normative law research conducted in this article showed that (1) the concept and understanding of bona fide third parties in civil law can be adopted in criminal law; (2) the application of legal protection to bona fide third parties over their assets in corruption and money laundering cases still depends on the moral goodness of law enforcement officials; and (3) investigators, prosecutors, and judges play an important role in protecting the human rights of bona fide third parties in corruption and money laundering cases

Why Did the Adoption of Constitutional Deferral Lead to Unintended Consequences of Freedom of Association in Indonesia?

A constitutional deferral is an approach utilised by constitutional drafters so that the drafters do not regulate things in detail in the constitution. This approach is believed to provide more opportunity for the constitutional framers to achieve consensus in drafting a constitution. In the end, this helps a constitution last longer. Constitutional deferral also offers some flexibility for the legislative and the judiciary in interpreting the text of the constitution in the future, which may accommodate the original intentions of the constitutional drafters. This paper argues the opposite. In Indonesia, adopting constitutional deferral causes an uncertain future of freedom of association. This paper aims to address two central questions. First, why did the framers of the first constitution adopt constitutional deferral in drafting provisions on freedom of association? Second, what are the consequences of implementing constitutional deferral toward freedom of association in Indonesia? Through historical and doctrinal approaches, the paper concludes (1) that the sharp ideological differences among constitutional drafters when drafting provisions on freedom of association forced them to employ constitutional deferral. (2) The use of constitutional deferral opens more possibilities for inconsistent interpretation by the executive, the lawmakers, and the judiciary when they establish law or adjudicated cases related to freedom of association. Through constitutional deferral, these three branches of government limit freedom of association instead of protecting such freedom

Judaization in Palestine: Is It Genocide According to the 1998 Rome Statute?

The purpose of this study is to analyse the act of genocide in the attempt at Judaization in Palestine based on the 1998 Rome Statute and examine the possibility of categorizing the Judaization of Palestine as cultural genocide because Judaization has changed various aspects of Palestinian life and the Palestinian territories themselves. In addition, cultural genocide has been eliminated from its history, but there are still actions that are assumed to lead to it. This research is a type of normative legal research using a conceptual, statutory, case, and historical approach. The results of this study indicate that the Judaization of land and people in Palestine is a crime of genocide, as stated in Article 6 (c) of the 1998 Rome Statute. At the same time, the Judaization of identity and holy places can be categorized as cultural genocide, according to experts. However, the opinions of experts contained in legal works are subsidiary legal sources and, until now, have not been recognized as customary international law. In addition, the Judaization of identity and holy places within the framework of international law can only be viewed as genocidal intent, not cultural genocide

Legal Protection for Nightclubs Female Workers in Bali

This study aims to identify, analyse, and find the risks and legal protections for female workers at nightclubs in Badung, Bali, Indonesia. Through empirical legal research, based on the study's results, it can be found that there are many risks faced by female workers who work at nightclubs. The risks faced by female workers at nightclubs in Badung, Bali, can include health risks (physical and mental/psychological), safety risks, risks of victimisation (becoming victims of criminal acts), getting a negative prejudice from the community, being ostracised, and the risk of falling into prostitution and drug abuse. Legal protection for female workers in nightclubs has yet to be implemented optimally. Many rights and protections are owned by women who work in nightclubs, but nightclubs cannot reach them. There are still many violations of the law against female workers. Management does not provide rights for night workers in accordance with the provisions of the Manpower Act because these workers are not included in the Labor Union. The legal consequences for women workers at night entertainment sites need better legal protection, especially in the context of the labour force. Stigmatising women employees at night recreation sites as prostitution workers also weakens protection for them.Women workers do not fight for their rights because they do not have much understanding of their rights

Philosophical Underpinnings of Social Insurance Mechanisms within the Framework of Health Insurance

Indonesia, as a country that adheres to the concept of a welfare state, seeks to achieve social welfare development by implementing a national social security system, particularly health insurance, managed by the Health Social Security Administration Agency (BPJS). It is regulated in Article 19, paragraph 1 of Law No. 40 of 2004 concerning the National Social Security System (SJSN). The fundamental principles of social insurance include mandatory participation, equitable health coverage, and contributions proportional to income. The philosophical issue at hand is whether implementing health insurance via the social insurance mechanism effectively guarantees the interests of the community while upholding the values of welfare and justice, as prescribed by the concept of the welfare state. This paper analyses the philosophical foundation underlying social insurance as a mechanism for implementing health insurance in Indonesia. This study employs normative research methods, utilising legislation as the analytical starting point. A philosophical examination is necessary to understand why, after a decade of implementing national health insurance, the state's goal of achieving welfare and social justice in health services for Indonesian citizens remains unmet. This analysis seeks to identify new mechanisms to fulfil the goals outlined in Law No. 40 of 2004

Legal Consequences of Disobedience of Provisional Decision of the Administrative Court

The existence of a legal vacuum in the State Administrative Court (PTUN) procedural law relating to the execution of the PTUN Provisional Decision raises the issue of Judicial Disobedience by state administrative institutions that do not want to carry out the PTUN Provisional Decision. Departing from this, there are two main problem formulations, namely: (1) What are the characteristics of PTUN provisional decisions? and (2) What is the formulation of legal protection against non-compliance with PTUN provisional decisions? Furthermore, this legal research uses a statutory approach, a conceptual approach, and a case approach. Based on an examination of existing legal issues, it can be concluded that provisional decisions are known in PTUN procedural law practice, where provisional decisions are submitted for matters deemed essential (urgent circumstances) by the Plaintiff to the Panel of Judges to be decided in an Interim Decision. Suppose the Party ordered by the PTUN does not implement the PTUN provisional decision. In that case, 2 (two) legal preventive mechanisms and 3 (three) legal repressive remedies can be taken in stages: 1) Sending a letter to the relevant agency, 2) Reporting to the Ombudsman, and 3) Using Criminal Law Mechanisms

Can the Right to A Good and Healthy Environment be Claimed as a Human Right?

Land fires in South Sumatra are an annual problem during the long dry season. It was recorded that in 2015, 2016, 2017, and 2018, the land fires spread massively in the four districts of South Sumatra. The peatlands located within oil palm plantations in the Districts of Ogan Komering Ilir, Banyuasin, Musi Banyuasin, and the district of Ogan Ilir were the source of the fire. The haze not only attracts national but also international attention. Besides human contribution to land fire, climate change should also be considered. The role of El Nino makes the season uncertain. Land fires affect human health and other human activities in the affected areas. Three legal instruments guarantee and protect the people's right to the environment, i.e., The 1945 Indonesian Constitution, the 2009 Law No. 32 on the Environment, and the 1999 Law No. 39 on Human Rights. The problem raised herein is to what extent people can claim the right to a clean environment as human rights guaranteed and protected in those legal instruments. The results of the discussion show that those three legal instruments do not protect people whose human rights have been violated. This is because 2000 Law No. 26 on Human Rights has no jurisdiction over environmental matters. It is suggested that establishing a special Environmental Court is the solution to protect community environmental human rights cases

Human Rights Violations and Corporate Criminal Liability: An Analysis of the New Indonesian Criminal Law

In light of the increasing role of corporations in facilitating gross human rights violations, this article seeks to evaluate the implementation of the Indonesian Criminal Law in addressing corporate criminal liability. Notably, the recently amended Indonesian Criminal Law recognizes corporations as subjects of criminal law, but Law No. 26 of 2000, which regulates gross human rights violations, does not. Consequently, this research specifically scrutinizes the Indonesian Criminal Code, Law No. 26 of 2000, and international legal standards to answer the issues: rules of aiding and abetting under international criminal law and the applicability of corporate culture theory, and the implementation of Indonesian Criminal Law in addressing corporate criminal liability for gross human rights violations. Examining these issues relies on three methodologies, namely the statutory approach, conceptual approach, and case approach. The results of this article uncover that the recognition of corporations as subjects under the new Indonesian Criminal Code and rectification of the ratione materiae of Law No. 26 of 2000 open the avenue for corporations to be held criminally liable for gross human rights violations based on aiding and abetting. Furthermore, the theory of corporate culture envisaged in the new Indonesian Criminal Code renders the plausibility of holding corporations liable if they are deemed to cultivate a culture that pushes or encourages a gross human rights violation.