Al-Ishlah: Jurnal Ilmiah Hukum

Implementation of Book Copyright Protection under Copyright Law: A Case Study of Pirated Book Sales on the Shopee Marketplace

Miftah Anggun Winanda — 2024-06-06

This research aims to understand the implementation of Law Number 28 of 2014 in addressing pirated book sales on Shopee. This study uses an empirical legal research method, adopting a virtual ethnographic approach to understand the legal behavior of internet users. The results show that the implementation of Law Number 28 of 2014 in addressing the sale of pirated books on Shopee is still not optimal, especially regarding monitoring and law enforcement. Effective law enforcement is necessary to strengthen copyright protection and restore losses that have occurred, including removing illegal content, civil lawsuits, and applying criminal fines as consequences for negligence. Therefore, it is recommended that various parties selling books on Shopee enhance their copyright protection efforts. First, Shopee should proactively improve its monitoring system to identify and remove infringing content before transactions occur. Second, Shopee sellers should ensure that their products comply with copyright requirements. Third, consumers should raise their awareness of the importance of purchasing legitimate products and support copyright protection efforts by reporting pirated books they find on the marketplace. Lastly, copyright holders are advised to actively monitor the distribution of their work and collaborate with marketplaces like Shopee to prevent copyright infringements and utilize available legal mechanisms to take action against violations. Through coordinated cooperation among all these parties, a fairer and more just environment in the digital market can be expected.

Resolution of Theft Cases Using Restorative Justice Approaches in Court

Roni Bahari — 2024-06-09

This research aims to understand how theft cases are resolved using the restorative justice approach in court. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results show that resolving theft cases with a restorative justice approach in court offers a new paradigm that not only focuses on applying retributive justice but prioritizes the processes of restoration and reconciliation between the Accused and the Victim. Through the implementation of Supreme Court Regulation Number 1 of 2024, the stages of case resolution with restorative justice from trial preparation to creating a restorative agreement ensure that the justice pursued is restorative. The effectiveness of this approach depends on the Victim’s willingness to forgive the Accused, the restoration of losses suffered by the Victim, and the Accused’s status as a non-recidivist. Therefore, it is recommended that Judges proactively facilitate dialogue between the Accused and the Victim and ensure that the restorative agreement adheres to the principles of proportionality and substantive justice. Public Prosecutors should more actively identify cases suitable for restorative resolution and prepare proof and physical evidence carefully to support the mediation process. The Accused and the Victim are encouraged to participate openly and honestly in mediation. In particular, The Victim needs encouragement to state their losses and needs clearly, and to consider the option of reconciliation as a step towards recovery. Finally, the community is expected better to understand the benefits and processes of restorative justice, thereby providing broader support for a criminal justice system oriented not only towards delivering retributive justice but also towards restoration and repairing social relationships in the future.

Dispute Resolution over Music Performance Contract Cancellation Due to the Effects of Controversial Actions

Gita Gisela Andriani Br Tarigan — 2024-07-09

This research aims to analyze the category of music performance contract cancellations due to controversial actions and the forms of non-litigation dispute resolution between the event organizer and 1975. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results show that the controversial actions of The 1975 vocalist in Malaysia, leading to the cancellation of their performance at “We the Fest 2023” in Jakarta, constitute a breach of contract. This cancellation not only reveals the direct impact on the event but also highlights the importance of clauses in contracts that specifically regulate public behavior and the potential consequences of such behavior, both legally and ethically. Furthermore, the dispute resolution between the Event Organizer and The 1975 following the cancellation of their performance was achieved through negotiation. The dispute resolution process between the two parties was effective and took only two days, demonstrating that negotiation is a quick and efficient non-litigious method. Therefore, it is recommended that event organizers and artists, singers, or bands include and clarify clauses in performance contracts related to public behavior and its potential consequences. These clauses should detail the fines or legal consequences that may arise from controversial actions that could negatively affect the execution of the contract or the reputation of the involved parties. Additionally, Event Organizers are advised to set behavior standards that band personnel must adhere to while on stage, thereby minimizing the risk of future music performance cancellations. Lastly, both Event Organizers and music bands should prioritize non-litigation as the initial step before pursuing litigation, as negotiation has proven efficient and effective in resolving disputes arising from breaches of contract due to controversial actions.

Directions for the Development of the Halal Ecosystem in Public Policy: A Study of Islamic Law and Legislation in Indonesia

Marnita Marnita — 2024-07-11

This research aims to explore the direction of halal ecosystem development in public policy in Indonesia. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results show that implementing the halal ecosystem concept in public policy in Indonesia has had significant social and economic impacts. Legislation such as Law Number 33 of 2014 has supported establishing and developing infrastructure and the halal product certification process. Additionally, an increase in the Islamic economic literacy index indicates a growth in public awareness. In contrast, a decline in the Sharia financial inclusion index identifies challenges that must be addressed. Therefore, it is recommended that the Government continue to update and adjust legislation that supports the halal economy, ensuring that these policies are responsive to global dynamics and domestic needs. Businesses need to enhance innovation and standardize products to maintain trust and meet consumers’ evolving expectations. Educational institutions should continue to expand research and education programs that support disseminating knowledge on Islamic economics and halal practices, particularly in addressing the challenges of literacy and financial inclusion in Sharia. Finally, Religious Leaders are expected to play an active role in educating the public, guiding the community with accurate knowledge about Islamic law, and ensuring that halal practices are effectively integrated into daily life. Synergy and integrated collaboration among all parties will strengthen Indonesia’s halal ecosystem, foster innovation, and maintain the country’s position as a leader in the global halal market.

National Capital Development Policy as a Strategy for Achieving Sustainable Development Goals in Indonesia

Nur Azizah — 2024-08-10

This study aims to evaluate the implementation of the Nusantara Capital development planning policy as a strategy to accelerate the achievement of the development of sustainable cities and communities. This study uses a normative legal research method. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that the development of the Nusantara Capital has been strategically integrated with the SDGs. A solid legal and policy foundation has facilitated a holistic approach in planning and implementing this project, covering everything from efficient spatial organization to sustainable resource management. This policy implementation demonstrates a solid commitment to sustainable development principles, including environmentally friendly infrastructure development, social integration, and community participation. Moreover, the development of the Nusantara Capital explicitly supports the achievement of the development of cities and communities, which aims to create inclusive, safe, resilient, and sustainable urban environments. This approach ensures that development targets such as adequate housing, sustainable transportation, cultural heritage preservation, and environmental management are holistically integrated, meeting long-term objectives while addressing urbanization challenges. Therefore, it is recommended that the government should continue to strengthen policies and regulations that support sustainable development practices, ensuring transparency and accountability in every phase of development. For the private sector and industry, it is highly advisable to invest in environmentally friendly technologies and sustainable practices that support the vision of the Nusantara Capital as a model for future cities. Meanwhile, the community should be actively involved in the planning and decision-making processes to ensure that development is inclusive and meets local needs. Cooperation among all parties is essential to achieve inclusive, safe, resilient, and sustainable development goals, in line with SDG 11.

Complaints by Victims of Adultery Offenses: A Comparative Study of Penal Code and Islamic Law

Ahmad Adanan Nasution — 2024-08-15

This study aims to comprehensively analyze the differences between the complaint system for victims of adultery in the new Penal Code and Islamic Criminal Jurisprudence. This study uses a normative legal research method. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The findings reveal fundamental differences between the two legal systems, despite a convergence in the expanded definition of adultery. The new Penal Code retains adultery as a complaint offense, allowing for the withdrawal of complaints before the trial examination begins. Conversely, Islamic Criminal Jurisprudence categorizes adultery as an ordinary offense, with complaints treated as da’wa (lawsuits) that, once proven, cannot be withdrawn due to their violation of Allah’s law. This distinction reflects a fundamental philosophical divergence between the two legal systems. The new Penal Code prioritizes protecting individual interests and providing room for reconciliation, while Islamic Criminal Jurisprudence emphasizes upholding moral values and divine justice. Therefore, it is recommended that law enforcement officers understand the philosophical differences and practical implications between the new Penal Code and Islamic Criminal Jurisprudence when handling adultery cases. Victims should understand their rights and the consequences of any legal action, including the possibility of reconciliation within the new Penal Code’s framework. Furthermore, society should enhance its understanding of both legal systems to actively participate in preventing and addressing adultery cases wisely and based on noble moral values, fostering a social environment conducive to peaceful and dignified conflict resolution.

The Status of the People’s Tribunal in Resolving Land Disputes in the Dago Elos Community

Fajar Ardiansah Wahyu — 2024-08-20

This study aims to analyze the status of the People’s Tribunal within the context of land dispute resolution in the Dago Elos community. This study uses a normative legal research method. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that despite lacking legally binding power, the People’s Tribunal plays a crucial role in fighting for justice and giving a voice to communities who feel their rights have been neglected by the formal judicial system. In the context of the Dago Elos land dispute, the People’s Tribunal serves as a platform for the community to articulate their dissatisfaction with court decisions perceived as unjust, and to fight for recognition of their rights to land and natural resources. The People’s Tribunal also symbolizes resistance against the legacy of colonialism and encourages more responsive legal reforms. Therefore, it is recommended that law enforcement agencies consider the People’s Tribunal’s verdict as valuable input in the law enforcement process, especially in cases involving structural injustice and human rights violations. The government needs to be more responsive to the aspirations of the community and strive for agrarian legal reforms that are more just, by recognizing and protecting the rights of local communities to land and natural resources. The community is advised to continue to strengthen the role of the People’s Tribunal as an alternative means of dispute resolution and upholding justice. In addition, the community is expected to participate in the decision-making process and oversee public policies related to the management of land and natural resources to ensure that these policies benefit the wider community and are sustainable.

The Role of the Religious Affairs Office in Preventing Unauthorized Guardianship: Islamic Marriage Law Perspective

Shania Delvira — 2024-08-25

This research aims to examine in depth the process of examining marriage guardian administrative data and the proactive role of the Religious Affairs Office of West Medan Sub-district in preventing unauthorized guardianship. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results show that the Religious Affairs Office of West Medan Sub-district has played a central role in ensuring the legitimacy of marriage guardians through a careful and thorough data examination process and proactive efforts in providing education and outreach to the community. Islamic legal principles, such as amar ma’ruf nahi munkar (enjoining good and forbidding evil), al-’adl (justice), hifz al-nasl (preservation of lineage), maslahah (public interest), and hisbah (accountability), serve as the philosophical and ethical foundations guiding the KUA’s role in maintaining the validity of marriages and protecting the rights of all parties involved. Nevertheless, challenges such as public ignorance, data manipulation, and administrative discrepancies require the KUA to continuously improve the capacity and professionalism of its officers, enhance the data verification system, and strengthen cross-agency coordination. Furthermore, the community must be continuously encouraged to understand the importance of legitimate guardianship and the legal consequences of unauthorized guardianship through intensive and relevant education and outreach programs. Thus, it is hoped that the KUA’s role in preventing unauthorized guardianship can be optimized, creating a more law-abiding and dignified society that upholds noble religious values in every aspect of life, including in marriage, which is the main foundation for building a sakinah, mawaddah, and warahmah (tranquil, loving, and compassionate) family.

The Role of Administrative Law in Realizing Village Autonomy Based on Local Wisdom

Firdaus Arifin — 2024-08-27

This study aims to analyze the role of State Administrative Law in realizing village autonomy based on local wisdom. The method used in this research was a qualitative approach with interviews, observations, and analysis of documents in some of the villages that were the subject of the study. These results show that State Administrative Law is vital in providing a foundation for villages to manage resources and development based on local potential and needs. Local wisdom is crucial for decision-making and resource management within villages, contributing to environmental sustainability and cultural preservation. The synergy between State Administrative Law and local wisdom creates effective policies that empower communities. Challenges in implementation, such as regulatory mismatches with local values, low legal literacy, and conflicts of interest, need to be addressed through legal socialization, capacity building, and collaboration. Therefore, it is recommended that the Government formulate inclusive and adaptive regulations to local wisdom and enhance human resource capacity in villages. Academics should conduct further research and provide policy recommendations. The private sector should play an active role in village economic empowerment, and village communities should actively participate in development and preserve local wisdom.

The Impact of Implementing Premarital Health Test Certificate Requirements on Unregistered Marriage Practices

Alvionita Julianti — 2024-08-27

This research aims to understand the impact of implementing premarital health test certificate requirements on unregistered marriage practices in Ujung Batu III Village. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results show that implementing premarital health test certificate requirements in Ujung Batu III Village has a complex impact on unregistered marriage practices. Although this policy aims to raise awareness about the importance of reproductive health and prevent early marriage, it has become an obstacle for some prospective couples who choose unregistered marriage. This is due to several factors, such as a lack of understanding about the importance of health tests, concerns about privacy and social stigma, conflicts between state law and religious law, and the prevalence of early marriage. Therefore, it is recommended that the Religious Affairs Office of Hutaraja Tinggi Sub-district intensify outreach and education about the importance of premarital health tests and their implications, especially for couples potentially engaging in unregistered marriage. The Ujung Batu III Village Government needs to strengthen coordination with the Religious Affairs Office and health institutions and involve community and religious leaders in disseminating the policy and providing guidance to prospective couples. Health institutions must improve the accessibility and quality of premarital health test services, including expanding the scope of examinations and providing comprehensive counseling. Community and religious leaders should play an active role in educating the public about the importance of healthy and registered marriages and help eliminate the stigma associated with health tests and early marriage. The community needs to proactively seek information about reproductive health, understand the importance of premarital health tests, and support government efforts in preventing early marriage and unregistered marriages.

The Legality of the Minister of Finance Letter Regarding Work Accident Compensation for Ad Hoc Election Organizers of 2019

Aqramawardana Aqramawardana — 2024-08-30

This study aims to analyze the validity of Minister of Finance Letter Number S-316/MK.02/2019 and S-317/MK.02/2019 using a state administrative law approach. This study uses a normative legal research method. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that although the Minister of Finance Letters are valid in terms of authority, they contain procedural and material flaws. The procedural flaw stems from non-compliance with decision-making requirements, while the material flaw arises from the inconsistency of the decision’s substance with the principles of humanity, benefit, and social justice. Nevertheless, based on the principle of presumptio iustae causa, the Minister of Finance Letters are still considered valid until annulled through the state administrative court. These decisions set an unfavorable precedent in state administration as they can create legal uncertainty for ad hoc election organizers, who should receive proper protection and social security as a form of appreciation for their contributions to the democratic process. Therefore, it is recommended that the Minister of Finance conduct a comprehensive review of decision issuance procedures to ensure their compliance with Law Number 30 of 2014. The General Election Commission and the Election Supervisory Board are recommended to improve the quality of their submitted proposals by ensuring comprehensive studies, considering the principles of democratic election administration, and paying attention to the principles of social security administration. Ad hoc election organizers are recommended to always be proactive in fighting for their rights, including proper protection and social security, in accordance with applicable legislation, and not hesitate to utilize available legal mechanisms if their rights are neglected.

The Crime of Body Shaming in Indonesia from the Perspective of Islamic Criminal Law

Fatimah Khairul Hakim — 2024-09-21

This study aims to examine the crime of body shaming in Indonesia from the perspective of Islamic criminal law. This study uses a normative legal research method with a comparative approach. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that body shaming, both verbal and non-verbal, is a reprehensible act that contradicts human values and is strictly prohibited in Islam, as emphasized in Q.S. Al-Hujurat verse 11 which prohibits acts of ridicule, reproach, and calling others by bad nicknames, and emphasizes the importance of guarding one’s tongue and using excellent and constructive words. In the legal context, body shaming falls into the category of jarimah ta’zir in Islamic criminal law and can be prosecuted under articles related to insult and defamation in positive law in Indonesia. This study recommends various preventive efforts, such as comprehensive public campaigns and education programs about the dangers of body shaming and the importance of respecting physical diversity, including integrating these values into the education curriculum and strict law enforcement. Collaboration between the government, judges, religious leaders, educators, and the community is expected to create a more inclusive environment that values everyone regardless of physical appearance.

A Review of the ‘Urf on the Law Governing the Customary Marriage Practice of Pakake Anak Daro in the Mandailing Tribe

Ade Irma Putri Nst — 2024-10-06

This research investigates the alignment of ‘urf with Islamic law in the context of the Pakake Anak Daro customary marriage among the Mandailing tribe in Singkuang Village. Adopting a mixed-method approach, the study explores the role of ‘urf within this marriage practice and its adaptation to modern times. Findings reveal that Pakake Anak Daro is a meaningful customary marriage rich in cultural values. It encompasses various processions, spanning pre-wedding, wedding, reception, and post-wedding stages, serving to strengthen cultural identity, foster social bonds, and express gratitude to Allah. The practice fulfills the ‘urf sahih (valid) criteria in Islamic law, embodying benefits, widespread acceptance, historical roots, and non-contradiction with Sharia principles. Pakake Anak Daro exemplifies the harmonious coexistence of local traditions and religious principles, contributing to Indonesia’s rich cultural tapestry. The study recommends collaboration among the Government, Religious Leaders, Customary Leaders, and Indigenous People to safeguard and promote this customary marriage as an integral part of Indonesia’s cultural heritage.

The Implementation of Parental Obligations in the Fulfillment of Children’s Rights: A Case Study in Banjaran Godang Village Based on the Compilation of Islamic Law and the Child Protection Law

Ahmad Syuqrun Ramadhan — 2024-10-09

This research aims to examine the implementation of parental obligations in Banjaran Godang Village in fulfilling children’s rights, specifically the right to education, play, and growth and development, based on the Compilation of Islamic Law and the Child Protection Law. This study adopts a combined approach, namely qualitative with the field research method and normative, by analyzing data qualitatively to describe the problem and answer the research objectives. The results showed that implementing parental obligation in fulfilling children’s rights in Banjaran Godang Village is not fully aligned with the Compilation of Islamic Law and Child Protection Law. There is a misunderstanding among parents who consider formal education merely Sunnah and prioritize trading and farming skills, based on their interpretation of the life of the Prophet Muhammad SAW in his childhood. As a result, children’s rights to play, grow, and develop are neglected. Therefore, it is recommended that the Banjaran Godang Village Government develop a comprehensive and sustainable counseling and outreach program regarding children’s rights and parental obligations. This program should involve religious leaders to correct misunderstandings about formal education in Islam, experts in the field of child protection to provide a comprehensive understanding of children’s rights, and related institutions to optimize program implementation.

Postponement of Inheritance Distribution for Minangkabau Migrant Inheritors: A Study of Islamic Law

M. Fathurrahman — 2024-10-15

This research aimed to examine the practice of postponing inheritance distribution for Minangkabau migrant inheritors from Islamic law’s perspective and identify the contributing factors. The research employed a mixed-methods approach, combining field research and normative legal analysis. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results showed that postponing inheritance distribution contradicts the principles of Islamic law, which mandates that the division be carried out promptly after the testator’s death using fara’id. This delay is influenced by economic factors, customary practices that grant women a dominant role in inheritance and prioritize the preservation of high-level heirloom treasures, and the distance separating migrant inheritors from their hometowns. Nevertheless, some scholars permit postponement if it is based on considerations of family welfare, while others reject it by referring to the ijbari principle. Therefore, it is recommended that the government, Islamic scholars, Minangkabau indigenous people, and Muslim migrant inheritors enhance their understanding and awareness of Islamic inheritance law and play an active role in preventing and resolving the issue of postponed inheritance distribution, as preventing inheritors from their inheritance rights is unlawful (haram) and a major sin.

Marriage Annulment Application Due to Lies and Fraud: A Case Study of Decree Number 3572/Pdt.G/2023/PA.Ckr

Sri Atmadianti — 2024-10-17

This study aimed to analyze the case facts of a marriage annulment application contained in Decree Number 3572/Pdt.G/2023/PA.Ckr, the causes of marriage annulment and its legal consequences. This research employed a normative legal research method with a comparative approach. The collected legal materials were analyzed qualitatively to describe the problem and answer the research objectives. The results showed that the marriage annulment application was based on solid grounds according to Law Number 1 of 1974 and the Compilation of Islamic Law. A series of lies and frauds were committed by the Respondent to the Applicant, ranging from concealing his marital status and child, falsifying the date of marriage, to providing a fake gold dowry. Nevertheless, the Applicant chose to withdraw her application and maintain her marriage. This study also reveals that a marriage can be annulled if the parties do not fulfill the pillars and conditions of marriage, with the legal consequence of severing the marital relationship. However, the law provides special protection for children born from an annulled marriage, where they are still considered legitimate children and have inheritance rights from both parents. The fundamental difference between marriage annulment and divorce lies in two crucial aspects: the wife is not entitled to iddah maintenance, and joint property is returned to its original state. Therefore, it is recommended that the Head of the Religious Affairs Office improve premarital counselling programs, Religious Court judges adhere to the principles of justice and wisdom, married couples prioritize honesty and communication, and religious figures actively provide guidance and counselling to prevent disputes that lead to marriage annulment applications.

The Challenge of a Ghoib Divorce Lawsuit: An Analysis of a Court Decision and Legal Implications in Indonesia

Arianty Anggraeny Mangarengi — 2024-10-18

This research aimed to analyze the legal basis and considerations of judges in deciding ghoib divorce cases and their legal consequences for the parties involved. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results showed that in deciding ghoib divorce cases, the Panel of Judges considered various aspects balanced, including the reasons for divorce given by the plaintiff and witness testimony. The judge made the appropriate decision by verstek, granting the ghoib divorce lawsuit and imposing talaq one ba’in sughra. The legal consequences of ghoib divorce refer to Article 119 of the Compilation of Islamic Law, which regulates talaq ba’in sughra, while Law Number 1 of 1974 and the Civil Code only regulate the legal consequences of divorce in general. Therefore, it is recommended that judges consistently adhere to the principles of justice and caution when handling ghoib divorce cases. Married couples must realize that disappearing without a trace is not a wise solution and will only complicate problem-solving. Divorce should be pursued as a last resort after all efforts to maintain the household have failed. Furthermore, the government needs to create more transparent and comprehensive rules and guidelines regarding the ghoib divorce trial process in Religious Courts to avoid legal uncertainty and ensure the protection of all parties’ rights.