Perspectives of Law and Public Administration

6

Authors: PhD. student Raden Roro Theresia Tri WIDORINI; Lecturer I Nyoman NURJAYA; Lecturer Bambang SUGIRI; Lecturer Ismail NAVIANTO

In order to fulfill the principle of the constitutional state, Republic of Indonesia in its constitution admit and guarantee that every people have rights of recognition, guarantee, protection, fair legal certainty and equality before the law. Discretionary power or freies ermessen attached to administrative power even according to the principle of constitutional state every authority should be based on law, but in certain situation and condition in which the law has not or does not clearly regulated, the officials or administration agencies should make an action or decision based on policy or discretionary of power. Although freies ermessen is created in the form of regulation that is known as policy rule or beleid regel but the act of administration agencies that is freies ermessen that is most potential for abuse of power. Therefore, in sentence of Corruption Crime it is based on the purpose of sentence namely improving and protecting society thus the criminal responsibility who is always asked for the convict in the criminal act while it is still based on purpose of sentence.

8

Authors: Student WIDARSONO; Lecturer Prija DJATMIKA; Lecturer Herman SURYOKUMORO; Lecturer Dhiana PUSPITAWATI

In analyzing legal materials, one of the applied techniques as contained in the research method is reconstructive. Reconstructive analysis technique for legal materials comes from the term reconstruction. The meaning of reconstruction in the context of analysis is in term of the building of the material object under the study according to critical epistemology based on the value to be achieved, so that a new juridical construction is formed. The reconstruction of the meaning of a legal rule is carried out by initially understanding the meaning in a particular regulation or article in a law by being systematically connected based on philosophical and analytical approaches. In reconstructing laws and regulations regarding counter-terrorism, this research refers to several theories, including the rule of law theory, the theory of authority, and the theory of legislation. The content of the laws and regulations that need to be reconstructed is the title of the law that regulates the eradication of terrorism, and regulations related to authority between Indonesian National Police (POLRI) and Indonesian National Army (TNI), as well as the role of National Security Council (DKN) in the ideal laws and regulations, which if referring to the Law Number 5 of 2018, it seems to be played by the National Counterterrorism Agency (BNPT) with all its special limitations related to the eradication of terrorism. With regard to regulatory reconstruction, that the title of the current legislation, namely the Law on the Eradication of Criminal Acts of Terrorism, should be revised to use a broader title, for instance into the Law on the Eradication of Terrorism, by omitting the phrase ‘Criminal Acts’ due to its use, the term ‘Criminal Acts’ seems to reflect to be only on the field of Criminal Justice System. Despite of that, the problems regulated in counter-terrorism are broader than that, because they involve TNI in overcoming acts of terrorism as part of TNI's duties from military operations other than war, and are carried out in accordance with the main duties and functions of the TNI. From the epistemological aspect, there are quite fundamental changes related to the aassignment of TNI and POLRI in dealing with terrorism. The regulation regarding TNI and POLRI certainly cannot be separated from the discussion on the authority of the two institutions, given the intersection of authorities.

8

Authors: Student Bram B. BAAN; Lecturer SUHARININGSIH; Lecturer Abdul MADJID; Lecturer YULIATI

The objective in the enaction of the Law of the Republic of Indonesia Number 40 of 2004 concerning National Social Security System is that everyone has the rights to get social security in order to be able to fulfill proper basic needs for their life and increase their dignity towards the realization of a prosperous, fair and wealthy Indonesian society that appropriate and fulfills the sense of justice in accordance with the mandate of the Constitution of the Republic of Indonesia. This paper analyzes the objectives in the enaction of the Law on National Social Security System of the Republic of Indonesia. The argument in this paper explains that the purpose in the implementation of Health Insurance, which is part of social security, is to achieve Universal Health Coverage for all Indonesian citizens so that all citizens can easily access health services. However, until now this has not been achieved, and some articles in the Law of the Republic of Indonesia Number 40 of 2004 concerning National Social Security System are contradicting to Article 28 H Paragraph (2) and Article 34 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

11

Authors: Assistant professor Roxana Maria CHIRIEAC

VAT enforcement by the Romanian tax authorities has recently been discussed by the European Court of Justice in a preliminary ruling concerning the correct imposition of VAT and the taxpayers’ rights in challenging the said decision to impose. Since Romania is a member of the European Union it is obliged to comply with the European regulations in place, in this case being the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as it was modified by the Council Directive 2010/45/EU of 13 July 2010 amending Directive 2006/112/ EC on the common system of value added tax as regards the rules on invoicing. The Romanian tax authorities, when controlling taxpayers, if the latter request a VAT reimbursement, have the right to impose a control on the taxpayers’ activity that generated the said reimbursement. Furthermore, when controlling the activity of a taxpayer, the National Agency for Fiscal Administration has the right to extend the said control to any and all activities and reports that entail and are relevant to the imposition. While the context is understandable, and a larger control is sometimes required in order to prevent possible tax evasion and an illegal VAT reimbursement, one must understand that such a control must not, in any circumstance lead to an abusive control or an abusive imposition.

11

Authors: Professor assistant Përparim GRUDA; Phd. student Doruntinë DEMIRI; PhD. Zahir ÇERKINI

This work scrutinizes modalities of the constitutionalization of international human rights instruments in the Republic of Kosova. Most of the newly established democracies or post-communist countries, as Kosova is, have adopted the highest western standards in guaranteeing human rights protection. However, the approach that this country has followed to make these standards part of its constitutional system is rather unique. Indeed, Kosova represents an unprecedented case for the place it has given to international instruments on its constitution. This peculiarity, subject of this study, will be examined through the elucidation of three main issues: First, the constitutional regulation of human rights which is heavily based on international human rights law; Second, the unparalleled approach of directly incorporating international instruments into constitution; and Third, the unique determination of the Article 53 of the Kosova’s constitution which requires the interpretation of human rights matters of all state authorities to be made according to the jurisprudence of the European Court of Human Rights.

13

Authors: Lecturer Hazbi LIKA

Debates and discussions on the national identity of Albanians, respectively the civil belonging of this identity, has its genesis since the period of the Albanian National Renaissance. At that period of time, the Albanian Renaissance’s representatives faced the civil belonging’s dilemma of the Albanian nation. This, because of the fact that Albanians had a nation, culture and language that belonged to Europe, but under five centuries of occupation of the Ottoman Empire were endowed with Oriental-Ottoman features and characteristics in many aspects of identity, culture, language, mentality, religion, etc. The western identity orientation of the Albanian renaissancers did not end the debate on Albanian civic belonging. Such debates continued throughout the twentieth century and continue to this day. Such is the debate between the most famous Albanian writer Ismail Kadare and the iconic scholar of Albanian culture Rexhep Qosja. This paper sets out and analyzes the views of these two predominantly Albanian intellectuals, the clash of these views, addresses the arguments of each and interprets them from a more objective perspective, including in the paper the views of other Albanian and foreign scholars and contributors to this cultural and identity debate that continues in Albanian society to this day. Being Kadare and Qosja the most influential intellectuals of the Albanian culture, the treatment of such a debate becomes of scientific importance.