LAW

1. ANALYSIS OF THE ROLE AND
FUNCTIONS OF THE
CONSTITUTIONAL COURT IN
THE STATE LEGAL SYSTEM
Presented by:
Mutia Evi Kristhy
Zulkarnaen Lubis
Yudistira Akbar Rizky
Akhmad Adi Surya Guntur Silam
International Conference Malikusaleh University
2023
Master’s of Legal Science – Faculty of Law - Palangkaraya University

2. Abstract
 Indonesia's position, which is a member of the WTO, is bound by the provisions of the DSU, where WTO
members who act as defendants whose policies are determined to be in violation are obliged to implement
them, otherwise they will be subject to retaliation by WTO members who act as plaintiffs.
 However, the fact that should be considered is the President of Indonesia's decision to uphold his export
prohibition policy and continue to fund downstream programs through laws and regulations that have
been declared to contravene WTO provisions.
 The research method applied in this paper is a normative juridical method. The first discussion of this
article examines the contextualization of legal and development theory in the context of the Indonesian
government's policy on nickel export prohibition.
 The findings of this study revealed that the Indonesian government's efforts to enhance downstream could
be linked to dependency theory, but had problems when the nickel export ban policy was found guilty by
the DS592 Panel.
Keywords: DS592, Law and Development, Policy Impact Analysis, Nickel

3. Introduction
An anarchic international system motivates countries to seek solutions to insecurity. Countries
continue to struggle to work together in an anarchic environment despite coordination and
collaboration.
As a result, countries establish international institutions to facilitate cooperation. Indonesia is
unquestionably one of the countries seeking security in building foreign connections in the world
system.
President Jokowi (2014-2019) established five foreign policy directions for Indonesia, including
1) border management; 2) strengthening Indonesia's role in ASEAN; 3) strengthening economic
diplomacy; 4) improving the quality of protection of Indonesian citizens/legal persons (WNI/BHI)
abroad, particularly the protection of Indonesian workers; and 5) strengthening Indonesia's role in
global cooperation.
From these five aspects, economic diplomacy evolved as a new term that was widely publicized
in the media. Indonesia's economic diplomacy is viewed as an attempt to prioritize economic
interests in the conduct of its foreign policy Christian Reus-Smit, dan Duncan Snidal, eds. The
Oxford handbook of international relations. London: Oxford University Press, 2008.
.

4. Methods
 As seen in the discussion of this research which uses Critical Legal Studies in Efforts to Amend
Regulations related to the Prohibition of Nickel Exports, this research used normative juridical research
methods. This approach was chosen since this research focused to understand and analyze legal norms
related to law and development theory. The main data source in this research is the applicable laws and
regulations that are relevant to the research topic.
 Furthermore, this study drew on legal doctrines from a variety of sources, including books, journal articles,
and papers that analyze the flow of critical legal studies concerning the role of law in development. As a
result, this research is interdisciplinary legal research that incorporates not only legal research but also
international trade.
 This is especially true of law as a sui generis science. To describe legal consequences, normative legal
study must result in the application of legal principles, doctrine, and norms to specific events. The
objections of proponents of normative legal research to the use of quantitative methodologies in legal
research came at a time when positivistic social science was becoming the majority in social research in
Indonesia.

5. FINDING AND
DISCUSSIONS

6.  As previously stated, the Indonesian government's efforts to improve the country's economy by capitalizing on its position as the country with the
world's largest nickel reserves and capitalizing on the global transformation trend in the use of electric vehicles is an applicable form of the theory of
absolute advantage initiated by Adam Smith. Implementing export prohibition regulations is a supporting component in efforts to raise the added
value of nickel products. using the lens of critical legal studies, the government's efforts to accomplish economic betterment and growth using a
variety of legal instruments are particularly interesting.
 Critical Legal Studies (CLS) is a legal philosophy alternative that can provide a distinct perspective on the law. This kind of thinking does not enable
state-made laws to be accepted for granted before there is a process of critical reasoning debate over the substance of the law. There is widespread
suspicion and worry that the laws enacted by the state will not bring about justice because the process includes a tug-of-war between political, power,
and economic interests, making legal products susceptible to imperfections. Neutrality and impartiality are crucial signs of legal purification. As a
result, CLS attempts to unearth power and economic relations that always interfere in law with their struggles and logic.
 Critical legal studies is a method of legal deconstruction that originated in the United States. When it comes to legal issues, critical legal studies show
that law cannot be isolated from politics, and that law is neither neutral nor value-free. As a result, biases favoring specific groups are always present
in the drafting and enactment of laws. According to Meuwissen, there are five postulates of legal philosophy. The first is that legal philosophy is
philosophy, and thus it reflects on all basic and marginal concerns relating to legal issues. Philosophy is composed of two parts. The first element, the
internal element, includes the structure of science and methodology. The second element is the external element, which comprises knowledge and
values such as religion, ethics, and ideology. As a result, Meuwissen's five propositions confronting legal philosophy are the basic knowledge and
framework of philosophy that are employed as study material for a framework of thinking toward the essence of legal philosophy. Law in the middle
of society cannot be split up from the thought and formulation of essential legal values.
at WTO
Critical Legal Studies in Viewing the Indonesian Government's Policy Regarding the
Ban on Nickel Exports

7. 2. Critical Legal Studies in Efforts to Amend Regulations Regarding the Prohibition of Nickel
Exports.
In particular, this article attempts to outline the category of Regulatory Design in RIM and examine it from the standpoint of analyzing the impact of
regulations as a basis for consideration by the Indonesian Government in making decisions to amend its legal regulations regarding nickel export ban, as
follows:
1. Anticipated policy results:
In this case, the outcome to be expected from the nickel export prohibition policy is how Indonesia's non-renewable nickel reserves are maintained and
optimally utilized by the Indonesian Government. If it is later revised, the Indonesian government must identify and examine the problems that the proposed
regulations are expected to address. It also includes an understanding of the problem's causes and effects. For example, if the export prohibition policy is
abolished, how can the Indonesian government ensure that existing nickel reserves are optimized to support the nickel sector downstream program.
1. The rules form, a legal framework for legal politics and related institutions:
In this case, a comprehensive study of the most effective form of regulation, as defined by the hierarchy of Indonesian positive legal laws, is required. This is
also connected to determining the numerous options or alternatives accessible to solve the stated difficulties. Furthermore, the possible impact of each
recommended choice, including benefits and costs, must be determined. This analysis often considers economic, social, and environmental impacts.
1. Ability to adapt to the socio-economic conditions of society:
This is associated with whether the subsequent legal amendments will be in agreement with the socioeconomic conditions in the field. As a result, later
policymakers, who are unquestionably within the scope of legal formation, must exercise caution in developing policies that change laws and regulations in
the nickel industry. Public consultations must be held to allow stakeholders and the general public to provide feedback on the proposed options and their
impact analysis.
It is expected that all analyses and feedback will yield the optimum policy alternative to bridge the Indonesian Government's requirement to optimize its
natural resources while not violating its international WTO commitments.

8. Conclusions
This article attempts to provide an outline of how the Indonesian government's efforts to fulfill its development
goals by utilizing its nickel natural resources were hampered when its nickel export prohibition policy was
challenged by the World Trade Organization. The export prohibition policy was found to violate GATT 1994
Article XI:1 in the DS592 Panel decision. Due to the vacancy in the AB members, the decision is not yet final,
and Indonesia's appeal process against the decision cannot be carried out.
The conditions outlined above are further explained in this article with the condition that if AB has resumed
operation and the Indonesian Government decides to change its regulations, the Indonesian Government must
do so while keeping in mind the original goal of this export ban policy, namely development goals. This
situation can also be viewed through the perspective of dependency theory, in which Indonesia is attempting to
break the chain of raw mineral export activities to raise the export value of nickel derivative products.
From the perspective of critical legal studies, the Indonesian government must consider the impact of
policies when formulating regulatory amendments. Thus, it is hoped that in the future, it will produce the best
policy option to bridge the Indonesian Government's need to optimize its natural resources while not violating
its international commitments at the WTO, given that the current export ban policy is thought to have provided
positive benefits to Indonesia's export performance.
.

9. Resources
Hillman, Jennifer “The United States Needs a Reformed WTO Now” delivered in hearing in front of Committee on Finance United States on
July 29th, 2020.
Rajagukguk, Erman. "Peranan Hukum dalam Pembangunan Ekonomi." Jakarta: Universitas Indonesia Fakultas Hukum-Pascasarjana (2017)
page 57
Trubek, David M.& Galanter, Marc. “Scholars in self-estrangement: some reflections on the crisis in law and development studies in the
United States.” Wis. L. Rev., 1974, 1062.
Mochtar Kusumaatmadja, Hukum, Masyarakat, dan Pembinaan Hukum Nasional (Bandung: Bina Cipta, 1995), page. 13
Lilik Mulyadi, “Teori Hukum Pembangunan Prof. Dr. Mochtar Kusumaatmadja, S.H., LL.M,” Direktorat Jenderal Badan Peradilan Umum
Mahkamah Agung
Lee, Yong-Shik "General Theory of Law and Development," Cornell International Law Journal: Vol. 50 : No. 3 , Article 2. 2017. Page. 429
General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources"
World Trade Organization. Understanding on Rules and Procedures Governing the Settlement of Disputes. Geneva: World Trade
Organization, 2023.
https://www.cnbcindonesia.com/news/20221230094311-4-401415/tahun-yang-menyakitkan-ri-masih-kalah-di-tangan-penjajah accessed on
May 7th, 2023
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds592_e.htm

10. Thank you.