PENA LAW: International Journal of Law

Reform of Indonesian Capital Market Governance in Response to MSCI's Evaluation of Transparency and Trading Manipulation

2026-06-04T13:32:08+00:00

This study examines the reform of Indonesian capital market governance in the context of market accessibility assessment conducted by MSCI (Morgan Stanley Capital International). Using a normative juridical method and a qualitative-descriptive approach, the research analyzes three main issues: the regulation of stock trading transparency, forms of market manipulation that have become concerns for MSCI, and the ideal framework for regulatory reform. The findings reveal that the Indonesian capital market legal framework, which is based on Law Number 8 of 1995 concerning Capital Markets and Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector (P2SK Law), has established a foundation for transparency through the principles of full disclosure and material information disclosure. However, the existence of 32 alleged market manipulation cases handled by the Financial Services Authority (OJK) up to early 2026 indicates persistent regulatory gaps, particularly in addressing digital trading practices such as spoofing and front running. MSCI’s evaluation also highlights limitations in ESG and non-financial data disclosure among Indonesian listed companies. This study recommends the reformulation of the legal status of tippees, the adoption of the misappropriation theory, the integration of artificial intelligence-based RegTech and SupTech systems, and the strengthening of the enforceability of capital market arbitration awards. These reforms are expected to enhance market integrity, transparency, and investor confidence, thereby improving Indonesia’s competitiveness in the global capital market.

Balancing Privacy and Digital Security: A Transnational Approach to International Data Protection Law

2026-07-08T04:08:30+00:00

The growing tension between privacy rights and national security interests in the digital age points to a normative crisis in global data governance. While the European Union has adopted a rights-based approach such as the General Data Protection Regulation, many other jurisdictions have instead adopted sectoral or security-based models that widen international legal fragmentation. This article analyzes how transnational legal instruments—particularly Convention 108+, the APEC CBPR system, and OECD guidelines can serve as a normative bridge in reconciling these differing regimes. Using a comparative-normative legal research method, this study proposes the concept of “digital precautionary principles” as a new paradigm for balancing individual privacy with legitimate security needs. The research highlights the limitations of soft law in ensuring cross-border accountability and emphasizes the importance of a principle-based harmonization approach. Conceptually, this article expands the normative framework in transnational data protection law and practically provides policy guidance for developing countries in building fair and adaptive legal infrastructure for data protection. In the midst of increasingly intensive global interconnectedness, privacy protection that does not sacrifice collective security can only be achieved through anticipatory, interoperable, and rights-based global norms.

The Global Landscape of Corporate Criminal Responsibility: Between a Culture of Compliance and Law Enforcement

2026-06-10T08:13:59+00:00

Corporate criminal liability has become a strategic issue in the era of globalization, when multinational corporations play a role as economic drivers while also having the potential to commit transnational crimes. Differences in legal approaches between countries, particularly between common law and civil law systems, create disparities in the scope, enforcement, and philosophy of liability. This study aims to conduct a comparative analysis of the legal framework for corporate criminal liability in the United States, the United Kingdom, Germany, Japan, and Indonesia, with a focus on the relationship between law enforcement mechanisms and compliance culture. The method used is normative-comparative legal research with analysis of regulations, court decisions, policy documents, and international guidelines such as those of the OECD and UNODC. The results show that the common law system adopts the vicarious liability model and hybrid mechanisms such as Deferred Prosecution Agreements (DPAs), while civil law relies more on administrative sanctions. Indonesia is in a transitional phase with explicit recognition but inconsistent implementation. This study recommends an integrative model that combines deterrence-based law enforcement with institutional reform as an effort toward global harmonization of corporate accountability.

LEGAL PROTECTION OF THE PRESIDENT IN A SOVEREIGN STATE FROM THE PERSPECTIVE OF SIYASAH DAULIYAH (A CASE STUDY OF THE ARREST OF THE PRESIDENT OF VENEZUELA)

2026-06-21T07:05:49+00:00

State sovereignty and head of state immunity are fundamental principles of international law, shielding heads of state from foreign court jurisdiction under the doctrine *par in parem non habet imperium*. This study examines the legal protection afforded to a president as head of state and reviews the U.S. arrest of Venezuelan President Nicolás Maduro through the lenses of international law and Siyasah Dauliyah. Using a normative legal method with statutory and conceptual approaches, the research finds that Maduro’s arrest carried out via a unilateral military operation without UN Security Council authorization and without due international legal process violates Article 2(4) of the UN Charter and contravenes customary international law on head of state immunity. From the Siyasah Dauliyah perspective, the head of state embodies political authority and state sovereignty; thus, any action against him constitutes an action against the state itself. The principles of equality, justice, human dignity, and peace, which underpin international relations in *Siyasah Dauliyah*, reject intervention and the use of force against other states. Consequently, legal protection for a president as head of state is inseparable from safeguarding national sovereignty and upholding the non‑intervention principle in international affairs. Any breach of this protection not only undermines the rule of law but also threatens global stability and the mutual respect that sovereign states owe one another.

Balancing Privacy and Digital Security: A Transnational Approach to International Data Protection Law

2026-06-09T04:03:40+00:00

The growing tension between privacy rights and national security interests in the digital age points to a normative crisis in global data governance. While the European Union has adopted a rights-based approach such as the General Data Protection Regulation, many other jurisdictions have instead adopted sectoral or security-based models that widen international legal fragmentation. This article analyzes how transnational legal instruments—particularly Convention 108+, the APEC CBPR system, and OECD guidelines—can serve as a normative bridge in reconciling these differing regimes. Using a comparative-normative legal research method, this study proposes the concept of “digital precautionary principles” as a new paradigm for balancing individual privacy with legitimate security needs. The research highlights the limitations of soft law in ensuring cross-border accountability and emphasizes the importance of a principle-based harmonization approach. Conceptually, this article expands the normative framework in transnational data protection law and practically provides policy guidance for developing countries in building fair and adaptive legal infrastructure for data protection. In the midst of increasingly intensive global interconnectedness, privacy protection that does not sacrifice collective security can only be achieved through anticipatory, interoperable, and rights-based global norms.

Constitutional Dimensions of Land Rights in the Era of Climate Change and Food Security: A Transnational Perspective from Indonesia

2026-06-20T17:34:06+00:00

Land rights are constitutionally guaranteed in Indonesia, yet their role in addressing global challenges of climate change and food security remains underdeveloped. This study explores the constitutional dimensions of land rights in relation to climate change adaptation and food security, while situating Indonesia within international legal frameworks such as the Paris Agreement, ICESCR, and VGGT. Using a normative juridical method combined with comparative and transnational analysis, the research examines constitutional provisions, agrarian regulations, and relevant international norms. The findings reveal a persistent gap between the normative ideals of Article 33(3) of the 1945 Constitution—which mandates land use for the prosperity of the people—and policy implementation that often prioritizes economic growth over ecological sustainability. Comparative insights from India, Brazil, and South Africa demonstrate how land rights can function as constitutional tools to enhance resilience and food security. By contrast, Indonesia’s fragmented agrarian, food, and climate policies undermine this constitutional potential. This study argues for a reinterpretation of constitutional land rights, shifting from an economic orientation toward a sustainability paradigm. The novelty lies in connecting land rights with the Right to Food and sustainable development, offering theoretical enrichment to constitutional law discourse and practical policy guidance for aligning national agrarian governance with international obligations.

LEGAL CERTAINTY REGARDING LAND FOR INVESTORS IN INDONESIA

2026-06-06T17:15:42+00:00

Legal certainty regarding land for investors is an important form of legal protection in supporting investment activities in Indonesia. However, in practice, various problems still exist, such as overlapping certificates, land boundary disputes, and claims by third parties to land that has been granted a Right to Build (HGU), Right to Cultivate (HGU), and Right of Use (HP). This study employs a normative legal research method, utilising a regulatory and legal literature approach concerning legal certainty regarding land rights for investors. The findings indicate that legal protection for investors is realised through the granting of HGU, HGB, and HP rights under Government Regulation No. 18 of 2021, as well as land inspections via the Land Inspection Report to ensure the land’s status is ‘clean and clear’. Furthermore, the government provides streamlined services and land rights licensing under Law No. 25 of 2007 on Investment as a form of protection and legal certainty for investors in Indonesia.

Transnational Constitutional Law: Bridging National Constitutions with International Norms

2026-06-17T14:28:21+00:00

This article examines the role of transnational constitutional law as a framework for linking national constitutions with international legal norms in an era of growing global legal interdependence. While traditional theories of monism and dualism have long shaped discussions about how national and international law relate, this research shows that these models are insufficient to reflect the complex realities of modern constitutional practice. Using a normative juridical and comparative qualitative approach, the study analyzes constitutions, international treaties, and constitutional court decisions as primary sources, supported by scholarly literature and institutional reports. The findings identify three main interaction patterns: normative convergence, where international norms are integrated to bolster domestic constitutional legitimacy; constitutional resistance, where states prioritize sovereignty and selectively adopt international standards; and hybrid models, where courts navigate between domestic and international obligations through doctrines such as the margin of appreciation. These patterns underscore the increasing importance of constitutional pluralism, which views the relationship between national and international law as dialogical rather than hierarchical. Extending the analysis beyond Eurocentric contexts, this article highlights perspectives from the Global South, especially Indonesia, where selective adoption of international norms illustrates the constitutional balancing act between national identity and global commitments.

Reparative Justice and State Responsibility: Reactualizing the Due Diligence Principle in Ensuring Civil Remedies for Human Rights Violations

2026-06-04T14:29:13+00:00

The right to civil redress is a central pillar of reparative justice for victims of human rights violations. Although international legal instruments, such as the United Nations Basic Principles on the Right to Remedies and Reparation, affirm states’ obligation to guarantee this right, many have failed to establish mechanisms that are effective and accessible to victims. This article conceptualizes the principle of due diligence as a binding international legal standard that obliges states to prevent and respond to human rights violations and ensure the availability of accessible and enforceable civil restitution. Employing a normative legal method and a comparative case study of Argentina, Germany, and Indonesia, the analysis demonstrates that civil restitution remains the most fragile dimension of state accountability frameworks, with reparations frequently regarded as discretionary policies rather than legal mandates. To address this gap, this study advances a set of normative indicators for assessing states’ compliance with their reparation obligations. The findings highlight the imperative of embedding the principle of due diligence within national legal systems as a concrete legal obligation, thereby advancing victim-centered justice.

Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice

2026-07-08T04:17:52+00:00

Overcriminalization has become a systemic problem in modern legal systems, characterized by a tendency to use criminal law excessively to regulate various social behaviors. This study critically examines how the expansion of criminal law—both in scope and intensity—can threaten the principle of legality and undermine substantive justice. Using a normative qualitative approach, this study applies doctrinal and comparative legal analysis to three jurisdictions: Indonesia, the United States, and Germany. Primary sources include legislation and court decisions, while secondary data is obtained from academic literature and institutional reports. The findings reveal that overcriminalization often results in vague legal norms, disproportionate sanctions, and selective law enforcement—particularly affecting vulnerable groups. The study reveals that this trend has eroded legal certainty and turned criminal law into a political and moral tool. By integrating penal minimalism theory, justice theory, and legal positivism, this article offers normative parameters in the form of necessity, proportionality, and the principle of ultimum remedium to recalibrate the boundaries of legitimate criminalization. This research contributes to contemporary academic discourse by providing a structured analytical framework and concrete policy recommendations to strengthen the legitimacy and fairness of the modern criminal justice system.

Mediation in Medical Disputes as a Pathway to Substantive Justice: Reframing Global Health Law through Human-Centered Dispute Resolution

2026-06-10T08:29:26+00:00

Medical disputes are increasingly common worldwide as patients become more aware of their rights and healthcare providers face stricter professional standards. Conventional litigation, while ensuring procedural justice, often fails to address the ethical, moral, and psychological aspects of medical conflicts. This research highlights a key gap in the literature: the limited recognition of mediation not just as a cost-effective alternative but as a tool for achieving substantive justice. Using a qualitative normative approach, this study combines doctrinal and comparative analyses. Findings show that mediation resolves disputes more efficiently than litigation and at much lower costs. Beyond efficiency, mediation improves access and delivers substantive justice by addressing patients’ emotional needs, rebuilding trust, and maintaining professional integrity. However, challenges still exist, including limited legal recognition of mediation outcomes, a shortage of specialized mediators, and cultural resistance favoring litigation. This study contributes theoretically by reframing mediation as a justice-oriented process aligned with restorative justice and practically by offering policy suggestions to strengthen mediation’s legitimacy and institutional role in global health governance. Therefore, mediation should be recognized not only as an alternative procedure but as a key instrument for substantive justice within international health law.

THE EFFECT OF LEGAL COMPLIANCE ON THE FINANCIAL PERFORMANCE OF MSMES IN INDONESIA

2026-04-27T08:40:31+00:00

This study examines the influence of legal compliance on the financial performance of Micro, Small, and Medium Enterprises (MSMEs) in Indonesia, with a particular focus on financial stability, profitability, and competitiveness. Employing a descriptive-analytical design with a conceptual approach, this research synthesizes legal and financial theories through an extensive review of secondary data, including academic literature, regulatory frameworks, and governance studies. Legal compliance is operationalized across four key dimensions: business licensing, taxation, employment, and consumer protection. The findings indicate that legal compliance plays a strategic role in enhancing financial stability by reducing regulatory risks, minimizing unexpected costs, and improving cash flow management. Furthermore, compliance contributes to profitability through cost efficiency and improved access to financing with more competitive capital costs. In terms of competitiveness, legally compliant MSMEs demonstrate stronger reputational capital, greater market access, and higher adaptability within digital and global markets. The study also highlights that compliance should not be perceived merely as a regulatory obligation but as a financial strategy that strengthens governance quality and long-term business sustainability. However, the effectiveness of compliance is contingent upon regulatory simplification and MSME capacity, including legal literacy and administrative readiness. This study contributes to the integration of business law and financial performance perspectives in the MSME context and offers policy-relevant insights for strengthening MSME resilience.

THE CONSTITUTIONAL PROBLEM OF PERPPU IN THE INDONESIAN LEGAL SYSTEM: TENSIONS BETWEEN EXECUTIVE AND LEGISLATIVE AUTHORITY FROM THE PERSPECTIVE OF CHECKS AND BALANCES

2026-06-30T15:31:40+00:00

A Government Regulation in Lieu of Law (PERPPU) is a constitutional instrument granted to the President under Article 22 of the 1945 Constitution of the Republic of Indonesia in cases of compelling emergency. Although normatively intended as an emergency mechanism, the practice of issuing PERPPUs has sparked debate regarding the limits of their constitutionality, particularly in the context of the relationship between the executive and legislative branches of government. This study aims to analyze the constitutionality of PERPPUs within the Indonesian legal system and examine the tensions between the President and the House of Representatives (DPR) from a checks and balances perspective. This study uses normative legal methods with a statutory and conceptual approach. The analysis was conducted on constitutional provisions, Law Number 12 of 2011 concerning the Formation of Legislation, and Constitutional Court Decision Number 138/PUU-VII/2009, which defines the objective parameters of compelling emergency. The results indicate that a PERPPU is formally valid if it meets the procedures stipulated in Article 22 of the 1945 Constitution and obtains DPR approval. However, substantively, the practice of interpreting the phrase "compelling urgency" still leaves room for subjectivity, potentially expanding executive authority in the legislative sphere. This asymmetry of power arises because the PERPPU is effective from its promulgation before the House of Representatives (DPR) approves it, thus ensuring ex post legislative control. This study proposes a reconstruction of the parameters of compelling urgency by emphasizing restrictive interpretations, objective proof of legal vacuum and time constraints, and strengthening substantive evaluation by the DPR. Thus, the constitutionality of the PERPPU can be maintained without sacrificing the principles of the rule of law and the balance of power within Indonesia's constitutional democratic system.

Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice

2026-06-09T04:16:37+00:00

International Diplomacy Policy on the Iran–United States War (2025–2026) from the Perspective of Siyasah Harbiyah

2026-06-21T06:53:41+00:00

This research is motivated by the escalation of geopolitical tensions between Iran and the United States during the 2025–2026 period. This conflict peaked with Iran's implementation of a maritime blockade of the Strait of Hormuz. The closure of this global energy route significantly impacted the international economy, including threats of inflation and a surge in energy subsidies, particularly in Indonesia. This study aims to dissect the dynamics of Iran's foreign policy changes and multilateral diplomatic responses from a Siyasah (Islamic politics) perspective. Using a normative juridical method that is qualitative-descriptive with a case approach, data were collected through a literature review of primary, secondary, and tertiary legal materials, such as the Qur'an, Hadith, classical fiqh literature, and relevant regulatory documents. The theory of Siyasah Dauliyah serves as the macro framework for international relations, while Siyasah Harbiyah functions as a specific analytical tool for armed crisis conditions. The results show that Iran's initial blockade of the Strait of Hormuz was a legitimate form of asymmetric defense (al-difa') when its state sovereignty was threatened. However, between April and May 2026, the Iranian government engaged in political ijtihad by gradually reopening access to the strait through envoy channels (al-sifarah) mediated by neutral countries such as Oman and Qatar. This de-escalation was triggered by multilateral diplomatic pressure from forums such as the OIC and the UN. The study concludes that the flexibility of Iran's policy, shifting from military confrontation to peaceful accommodation, is a clear manifestation of the enforcement of contemporary Siyasah Dauliyah and Siyasah Harbiyah strategies to achieve shared economic benefit (maslahah ammah) and prevent wider global harm.

LEGAL CERTAINTY AND DISTRIBUTIVE JUSTICE IN THE AGE LIMITATION OF NOTARY OFFICE TENURE FOLLOWING CONSTITUTIONAL COURT DECISION NUMBER 84/PUU-XXII/2024

2026-06-07T01:53:15+00:00

Constitutional Court Decision Number 84/PUU-XXII/2024 constitutes a constitutional milestone in the judicial review of Article 8 paragraph (2) of Law Number 30 of 2004 concerning the Office of Notary, which regulates the extension of a notary's term of office up to the age of 67 years subject to the notary's health condition. The Panel of Constitutional Court Justices partially granted the petition and declared the provision contrary to the 1945 Constitution of the Republic of Indonesia, particularly Article 28D paragraph (1) concerning the right to legal protection and fair legal certainty. This study aims to: (1) identify and analyze the legal reasoning of the Constitutional Court in the aforementioned decision; (2) examine its implications for the fulfillment of the principle of distributive justice between the continued professional practice of senior notaries and the regeneration of younger notaries; and (3) assess the reconstruction of regulations governing the notarial profession following the decision in order to provide fair legal certainty and strengthen the notarial institution in Indonesia. This research employs a normative legal research method using statutory, case, and conceptual approaches. Data were collected through document studies of relevant legislation, Constitutional Court decisions, theories of distributive justice, and academic literature, and were subsequently analyzed using a descriptive-qualitative method. The findings indicate that the Constitutional Court determined that the term of office of a notary may be extended until the age of 70 years, subject to annual medical examinations conducted at a central government hospital, a regional public hospital, or a hospital designated by the Minister responsible for legal affairs. In reaching this conclusion, the Court set aside the principle of the open legal policy doctrine on the grounds that the challenged provision contained irrationality and intolerable injustice. Regulatory reconstruction is therefore necessary to ensure that professional protection balances the interests of senior notaries with the need for professional regeneration, while simultaneously strengthening legal certainty in the sustainable administration of Indonesia’s notarial institution.

Life Imprisonment and Harsh Sentences for Juveniles: A Critical Analysis under International Human Rights Law

2026-06-17T14:44:27+00:00

This study critically examines the imposition of life imprisonment and harsh sentences on juveniles through the lens of international human rights law. Employing a normative-qualitative and comparative framework, the research analyzes core international instruments—including the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture (CAT)—alongside relevant case law and global jurisprudential trends. The findings reveal a significant compliance gap between established international standards and domestic implementation, particularly in jurisdictions that continue to enforce juvenile life imprisonment without parole. The study argues that such sentencing practices contravene fundamental human rights principles, including the best interests of the child, and constitute cruel, inhuman, or degrading treatment under international law. Moreover, these approaches are scientifically untenable, ignoring developmental and neuroscientific evidence underscoring juveniles’ capacity for rehabilitation. In contrast, progressive reforms in Europe and Latin America reflect a growing shift toward restorative justice and child-centered penal models. By integrating normative analysis with comparative insights, this research contributes to academic and policy discourse on juvenile justice, offering actionable guidance for realigning domestic legal frameworks with international human rights obligations. It ultimately emphasizes the urgent need for states to abandon punitive sentencing in favor of rehabilitative approaches that are both rights-compliant and empirically grounded.

Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice

2026-06-06T16:59:29+00:00

Reparative Justice and State Responsibility: Reactualizing the Due Diligence Principle in Ensuring Civil Remedies for Human Rights Violations

2026-07-08T12:38:52+00:00

Legal Immunity of Advocates as a Constitutional Guarantee for Access to Justice and Democratic Accountability

2026-06-17T14:12:13+00:00

Advocates are essential to upholding the rule of law and ensuring access to justice; yet, they often face intimidation and criminalization when handling sensitive cases. While international instruments, such as the United Nations Basic Principles on the Role of Lawyers (1990), recognize the importance of legal immunity, its constitutional protection and implementation vary significantly across jurisdictions. Employing a normative juridical approach that integrates doctrinal, comparative, and conceptual analyses, this study finds that European legal systems generally provide stronger constitutional safeguards. In contrast, many Latin American and Asian jurisdictions offer comparatively weaker protections. The findings affirm that advocates’ immunity is not merely a professional privilege but a constitutional guarantee essential to equal access to justice and democratic accountability. This study contributes to scholarly discourse by reframing advocates’ immunity within a constitutional and democratic framework. It further offers practical recommendations for policymakers and professional associations to strengthen legal protections, thereby enhancing both the independence of advocates and the resilience of democratic systems.